60 Kan. 747 | Kan. | 1899
Lead Opinion
The opinion of the court was delivered by
A. C. Wheelock brought ah action against John E. Myers and Augusta M. Myers to recover upon a promissory note on which there was due the sum of $2538 and to foreclose a mortgage on land, given by Myers and wife to the Rickert Invest
“It is agreed that the allegations of plaintiff’s petition are true, but that the assignment of the mortgage alleged in plaintiff’s petition was filed for record in the office of the register of deeds of Wyandotte county, Kansas, on January 10, 1898, and not at any other time ; that plaintiff ever since the time of purchasing the note sued on, .and then, was a non-resident of Kansas ; that' the allegations of payment in the defendant’s answer are not true, but the allegations therein as to the time of filing for record of the aforesaid assignment are true, and this action was commenced. January 11, 1898.”
Upon this stipulation judgment was rendered for plaintiff, and the defendants below complain and insist that the failure to record the assignment of the mortgage to plaintiff within six months after the passage of the act of 1897 is a complete defense against the recovery of the debt and the foreclosure of the mortgage.
The challenge of jurisdiction because of the absence of parties cannot be sustained, as it appears that all
Questions as to the effect and validity of chapter 160, Laws of 1897, which provides for recording assignments ' of real-estate mortgages and prescribes penalties for failing to do so, are presented, and the determination of these, it is claimed, are necessarily involved. The statute, after requiring the acknowledgment and recording of such assignments, in section 4, provides that “no assignment of mortgage shall be received against the mortgagor, his heirs, personal representatives, or assigns, in any court of this state unless the same shall have been acknowledged and recorded as herein provided.” In section 6 of the act there is a provision that assignments of existing mortgages, bearing date prior to the taking effect of the act, shall be recorded within six months after the act goes into effect, and that the provisions of section 4 shall be applicable to all assignments not so recorded. As will be observed, the penalty prescribed for failure to record is the inhibition of the use of the assignment as evidence against the mortgagor, his heirs, personal representatives, or assigns. It is not, as apparently contended, the annulment of the mortgage nor the destruction of the mortgage lien. The provision that the assignment shall not be received in any court means no more than that it shall not be received in^ evidence, as that is the only purpose for which it would be offered or received in court. Instead of prescribing that the non-record of the transfer shall extinguish the mortgage lien, it simply made the unrecorded assignment wholly valueless as proof to establish the ownership of the mortgage ; and other provisions of the act unite in indicating this to have been the legislative purpose.
The writer is unable to agree with his associates in this view. In his opinion, the agreed facts are more than a statement of evidence from which inferences of fact are to be drawn. They are the ultimate and only facts in the case, and the sole duty of the court was to apply the law and determine the rights of parties as would have been done from findings of fact made by a jury. The assignment of the mortgage being distinctly stipulated and agreed on, why should it not be treated as an ultimate and governing fact ? While the statute prohibits the receipt of the assignment in evidence, it does not prohibit parties from
On behalf of the defendant in error, it is said that if the statute be so interpreted that it takes away the right of an assignee to enforce a mortgage which he owned wdien the act was passed, it impairs the obligation of a contract. He claims that when the law was enacted the mortgagors were bound to him in a complete contract the obligation of which was that they would pay him the debt on a fixed day, and if
"Limitation laws which operate on subsisting contracts, and laws which regulate the registration of existing conveyances or instruments affecting titles to lands, are within the operation of this rule when a reasonable time is given within which the effect of such a statute, as applied to existing conveyaxxces, may be avoided and rendered harmless in respect to vested rights.” (The Connecticut Mutual Life Ins. Co. v. Talbot et al., 113 Ind. 373, 14 N. E. 586.)
As tending to support the validity of the act, the following cases are cited : Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068; Turner v. New York, 168
The act being valid, it follows that the judgment of the district court must be reversed, and the cause remanded for further proceedings.
Dissenting Opinion
dissenting from third paragraph of the syllabus and corresponding portion of the opinion.