55 Kan. 331 | Kan. | 1895
I. The original action was commenced by said Henry Lardner against Francis Yahn and others on certain promissory notes, and to foreclose two mortgages given to secure the same ; and Henry Keys, plaintiff in error, was made a party defendant as claiming some interest in the mortgaged premises, alleged to be inferior and subject to the liens of said mortgages. The premises were described in the mortgages and in the petition as follows :
“ Commencing on the center line of section four (4), township nineteen (19), range eleven (11) east, 11 chains north of the center of said section four (4) ; thence north 33£ degrees, east chains ; thence north 48 degrees, east l-jW chains ; thence north 67i degrees, east 3-jYít chains ; thence north 79 degrees, east I-tVo chains; thence north 78 degrees, east to the center of the Neosho river; thence down -the center of said river to the east line of said section four (4) ; thence south on said line until it intersects the center of said river; thence down the center of said river to first ravine, to land owned by Albert Childres ; thence south in the center of said ravine to the south line of the northeast quarter of said section 4; thence west on said line to the place of beginning — containing 68 acres, more or less, all in the northeast quarter of section 4, township 19, range 11. ”
Keys filed a motion to require the plaintiff to make his petition more definite and certain, by giving a good and sufficient description of the real estate on which he claimed mortgage liens. This motion was overruled, Keys excepting. Keys also filed a general demurrer which was overruled, and he excepted. He then filed an answer stating, among other things, that he was the legal owner in fee simple of the following-described real estate, lying and situated in the northeast quarter
We think the court erred in treating the answer of Keys as a disclaimer, for it very plainly appeared that Keys did claim part of the land which the court
II. Keys claims that the judgment was too large on both notes, but as to the first or $1,200 note he labors under a misapprehension of fact. He says this note was executed June 30, 1884, and became due June 30, 1889. When it became due it was extended for five years, to bear interest at the same rate. The statute regulating interest was amended May 25,1889, the rate being lowered, and Keys contends that under the extension the interest was usurious. But the note and the mortgage were executed January 30, 1884, and became due January 30, 1889, and so the extension was made under the law in force when the note
The judgment will be reversed, and the cause remanded for a new trial.