| Kan. | Jan 15, 1878
The opinion of the court was delivered by
Plaintiff in error, as plaintiff below, filed its petition in the district court on the 25th of August 1874, against defendants Abraham Cook, Elenah Cook, and H. E. Westerman, to foreclose a mortgage on certain real estate situate in an addition to the city of Paola, Miami county, the Cooks being the mortgagors, .and Westerman holding a second mortgage on the same property. The Cooks made default, though they were duly served with summons. The petition sets forth a copy of the mortgage, that the plaintiff was an incorporated life insurance company, duly incorporated under the laws of the state of Missouri, and duly authorized to transact business in the state of Kansas, and to loan money on real-estate security, having fully complied with the laws of the state of Kansas relating to foreign insurance companies, and being duly authorized to transact business in said Miami county; that it had been compelled to pay certain taxes on the mortgaged premises to save its lien and security; that the defendant Westerman had or claimed to have some interest in the mortgaged premises, but the exact nature of which the plaintiff was not acquainted with, but averred that it was subject and inferior to the lien of plaintiff; and in addition, the petition contained the usual averments of the nonpayment of the note, taxes, etc. Westerman •filed her answer on the 5th of October 1874. This answer
The pleadings showed that the mortgage given by the Cooks to the insurance company was dated 10th January 1873, and filed for record the same day at 4-J o’clock p. m. The mortgage to Westerman was executed the same day, but not filed for record until March 18th 1873. On the hearing of the cause, at the December Term 1874 of the district court, after a motion for judgment on the pleadings, filed by the plaintiff, had been overruled, the case was tried by the court, a jury having been waived, and personal judgments were rendered against defendants Cook in favor of plaintiff and Westerman, and the decree ordered the mortgage property to be sold to satisfy such judgments, but provided that the proceeds of the sale should be brought into court to abide its
No testimony was offered by either party at any stage of the proceedings in the case, except the exhibits attached to the respective pleadings, and on the part of the plaintiff the original tax redemption certificate, and the original renewal premium receipt for insurance on the mortgaged premises. Upon what basis the court held the mortgage of the insurance company null and void, in view of the pleadings, we are at a loss to determine; and the defendants in error have not thought it wise, or at least necessary, to enlighten us. No brief or other argument has been filed or presented in their interest. No issue whatever was presented in the pleadings between the insurance company and Westerman, as the answer of the latter did not deny the allegation of the petition, that her mortgage was subject and inferior to the lien of the insurance company. And the copies of the two mortgages evidenced this statement. Neither was any defense properly pleaded to the first or prior mortgage; and the court below would not have committed any error in sustaining the motion for judgment on the pleadings in favor of the plaintiff. Gaylord v. Stebbins, 4 Kas. 42; Douglas v. Rinehart, 5 Kas. 393; Reed v. Arnold, 10 Kas. 103; School District v. Carter, 11 Kan. 445" court="Kan." date_filed="1873-01-15" href="https://app.midpage.ai/document/school-district-v-carter-7883376?utm_source=webapp" opinion_id="7883376">11 Kas. 445. Certainly, in view of the evidence and" the condition of the cause at the June Term 1875, from whatever point it is judged, the district court had no right to de
If the district court assumed the question was raised, that under the laws of this state the plaintiff had no right to take a mortgage concurrently with the loan, in order to secure it, and was only authorized to take mortgages “by way of security for loans previously contracted, or for moneys due,” (and we consider the judgment in this light,) then we must hold the various provisions of our statutes relating to the powers of life insurance companies were wrongly construed. The law concerning insurance companies in force at the execution of these mortgages was ch. 93, Laws of 1871, pp. 214,249. Sec. 71 provides, that—
“No insurance company, organized under the laws of this state, shall be permitted to purchase, hold, or convey real estate, excepting for the purpose and in the manner herein set forth, to-wit: First, such as shall be requisite and convenient for its accommodation in the transaction of its business; or second, such as shall have been mortgaged in good faith by way of security for loans previously contracted for moneys due; or third, such as shall have been conveyed to it in satisfaction of debts previously contracted in the course of its dealings; or fourth, such as shall have been purchased at sales upon the judgments, decrees, or mortgages obtained or made for such debts.”
But this must be construed in connection with section 54 of the same chapter, to the effect that, “any life insurance company * * * may * * * purchase or invest, by loan or otherwise, any of their funds in bonds, or notes and mortgages, on unincumbered real estate worth fifty per cent, more than the sum loaned thereon,” etc., (and see sections 47, 48 and 49 of the act.) Recollecting that under our laws a mortgage is a mere security, creating a lien upon the property but vesting no estate whatever, either before or after condition broken, subdivision 2 of sec. 71, above quoted, read in connection with the other sections quoted, and the first part of
The judgment of the district court of the June term 1875 must be reversed; and such court is directed to carry into effect its decree of December 1874, so far as to have the judgments therein rendered duly enforced, and to adjudge