74 P. 615 | Kan. | 1903
The opinion of the court was delivered by
John B. Wells was the owner of 160 acres of land. In September, 1887, he borrowed from William P. Leonard $850 and gave his note for the amount, payable October 1, 1892. At the same time
On April 18, 1901, this action of ejectment was brought by Wells against Morford. The latter in his answer, in addition to a general denial, set up the Leonard mortgage owned by him as an equitable defense, and also that he had paid taxes to the amount of $250. In his reply plaintiff below alleged that the five years’ statute of limitations had run against a •cause of action on the Leonard note and mortgage before Morford bought them. The court made findings of which the above facts are the substance. The tax deed on the land was conceded to convey no title. There was judgment entered in favor of Wells, the plaintiff below, for the recovery of the land and for $515 rents and profits. Morford complains.
Again, the purchase by Morford of the Leonard note and mortgage was made more .than two years after an action on the note or suit to foreclose the mortgage had been barred by the statute of limitations. In Kelso v. Norton, supra, the right of the mortgagee in possession to foreclose was barred at the time the ejectment action to recover the land was begun by the mortgagors, but not at the time the mortgagee went into possession. There - are strong equitable reasons for protecting a mortgagee in his occupancy of land until the mortgage debt is paid when he has gone into possession of it peaceably, after condition broken, while the mortgage is a lien. (Stouffer v. Harlan, post, 74 Pac. 610.)
“The appellant’s third point is that the court erred in the conclusion that the defendant is not entitled to the rights of a mortgagee in possession. This conclusion was predicated upon the fact that the defendant did not go into possession until May, 1879, prior to which time the land was unoccupied. This was long after the right to foreclose the mortgage had become barred by lapse of time, the effect of which was to extinguish the mortgage as to Washburn, if his rights had not been foreclosed or otherwise extinguished. Archambau v. Green, 21 Minn. 520; Benton v. Nicoll, 24 Minn. 221. The mere fact of the subsequent entry into possession and occupancy by the defendant, with the knowledge of the plaintiff and her grantors, was not effectual to revive the extinguished mortgage so as to entitle the defendant to-the rights of a mortgagee in possession.”
In Benton v. Nicoll, cited in the above quotation, the last paragraph of the syllabus reads :
“When right of entry has never been asserted, or exercised, it is too late to assert it, for the first time, after the right of foreclosure has become barred by the statute.”
When Morford purchased the note and mortgage their vitality had gone ; the mortgage was no lien on the land. In Schmucker v. Sibert, 18 Kan. 104, 111, 26 Am. Rep. 76, Mr. Justice Brewer, speaking for the court, said :
“When the note is barred, the mortgage is also barred, and no subsequent payment, promise or acknowledgment can revive the mortgage as to property
The amount of the judgment for rents and profits seems to have been calculated from the value of the crops testified to by defendant below. The admission of incompetent testimony given by other witnesses in respect to such rents and profits is therefore immaterial.
The judgment of the court below will be affirmed.