| Kan. | Jan 15, 1881
This action was begun in the district court of Anderson county, on the 17th day of May, 1880. The plaintiff’s petition alleges that, on or about the 15th day of July, 1858, Joseph C. Wilson executed his promissory note for the sum of $240, payable to Hamilton G. Fant, due one year after date, with 40 per cent, per annum, as interest thereon from date, and that at the same time, defendants Joseph C. Wilson and Sarah Wilson, in order .to secure the payment of the note, made a mortgage to said Hamilton G. Fant, on the S.W.-J of sec. 31, township 20, range 20, in Anderson county, Kansas, and promised and agreed in said mortgage to pay a rea.sonable attorney’s fee in ease of a foreclosure thereof; that said mortgage is duly recorded in the Pawnee land district record ■office at Lawrence, Kansas; that Wilson and wife left Kansas ■soon after executing the note and mortgage, and have ever ■since been beyond the limits of the state of Kansas; that the note is due and unpaid; that in April, 1880, Hamilton G. Fant duly assigned the note and mortgage to Thomas M. Pattie, plaintiff; and that ten per cent, on the amount of principal and interest is a reasonable attorney’s fee for foreclosing •said mortgage; and that the defendants Reber, McCarty and W. R. King claim some interest in the mortgaged premises, but whatever interest they, or either of them, may have, is inferior, subsequent, and subject to the lien of said plaintiff; and prays for judgment, and an order of foreclosure of the mortgage, and a sale of the mortgaged premises, etc.
The defendant W. R. King in his answer admits the truth ■of all the allegations of plaintiff’s petition, and alleges that he is the owner of the mortgaged premises, and is entitled to the surplus proceeds arising from the sale thereof, after ■satisfying plaintiff’s claim and costs of suit.
The defendants W. S. Reber and Thomas McCarty, in their answer to the plaintiff’s petition, say:
“1. That they deny each and every allegation therein set forth, except such as are thereinafter admitted.
“3. That the note and mortgage were paid by Wilson. Shannon in 1858, and that Shannon was the agent of Hamilton G. Fant from 1856 to 1868, and as such agent he settled the note and mortgage with Joseph C. Wilson by taking a conveyance to himself of said land, with the full knowledge and consent of H. G. Fant, which conveyance was duly made to Wilson Shannon, and the note and mortgage were thereby paid off and released; and that said note and mortgage were paid prior to the eommeneemeht of this suit.
“4.. That Joseph C. Wilson and wife, on the 26th day of' July, 1858, conveyed the lands described in plaintiff's petition to Wilson Shannon, who has ever since been a resident of the state of Kansas, and in September, 1866, Shannon and wife-duly conveyed the land to James Reber by warranty deed; that W. S. Reber, as administrator, conveyed the land to L. M. Ernest, and L. M. Ernest and wife thereafter conveyed said land to Thomas McCarty, who now owns said land, clear from all incumbrances, without the knowledge off the claim of Fant or said plaintiff; and neither did any off the owners of said land subsequent to Joseph C. Wilson, defendant, have any knowledge or notice of any claim of H. G. Fant or the plaintiff; that the defendant McCarty is in the actual possession of the land, and that all of the said grantees have been in possession thereof and residents of the state óf Kansas for twenty years last past, and no action 'has been, brought on the note and mortgage set out in plaintiff's petition, within five years, or fifteen years after said right of action (if any such right of action there was) ever accrued.
“5. That defendant William R. King claims some interest-in or to said land, under a deed from Joseph C. Wilson and wife to him, subsequent to the deed under which W. S. Reber and Thomas McCarty claim title, and asks to quiet this title as to King."
The plaintiff’, in reply to the answer of W. S. Reber and Thomas McCarty, denies all new matter stated therein, and, this reply is verified by the affidavit of plaintiff. William. R. King replies to the answer of defendants W. S. Reber and-. Thomas McCarty, and denies that Joseph C. Wilson and wife-ever made a deed of the land to Wilson Shannon on the 26th.
The only controversy in this case is of course between plaintiff and the defendants Reber and McCarty. King and his relations to the case may be ignored. His quitclaim deed obtained in 1880 signifies nothing. It might have been of value if the judgment had been in favor of the plaintiff. As it is, it is nothing. We proceed therefore to the question of errors as between plaintiff and defendants Reber and McCarty. And first, plaintiff insists that upon the pleadings he was entitled to judgment, and that the court erred in refusing his application therefor. Clearly the ruling of the court was right. Without noticing any other matter, it is sufficient to-say that the title of plaintiff to the note and mortgage was distinctly put in issue. The plaintiff claimed as assignee. No written assignment was shown. The defendants denied generally and denied specifically plaintiff’s interest and title. It is true the answer was not verified, but only certain allegations are admitted by a failure to answer under oath. Among them are “allegations of the execution of written instruments and indorsements thereon.” (Code, §108.) The execution of the note and mortgage may be considered as admitted ; but an assignment of the claim, not alleged to have been in writing, is not admitted. A parol assignment would
Again, error is alleged in rejecting evidence offered of declarations made by the mortgagor. These declarations were not made under such circumstances as to work an estop-pel, or to have been the inducement to plaintiff's purchase; but were offered simply as evidence of the fact that the note and mortgage were not paid. Without stopping to inquire whether there was' any error in rejecting this testimony, it does not appear that the error, if any, worked any prejudice to the material rights of plaintiff, for the mortgagor was himself a witness, and testified that they had not been paid. He detailed the whole transaction as he understood it. Now plaintiff’s case would not have been strengthened by proof that Wilson had stated out of court just what he testified to in court. If Wilson had been dead, or if his testimony was not obtainable on the trial, then the question might fairly arise, whether there was not material error in rejecting evidence of his declarations.
We pass now to the really important questions in the case, which are, whether Reber and McCarty were in a condition to raise the question of payment; and if so, whether there was evidence sufficient to sustain the jury’s finding of payment. Upon these questions, these facts should be noticed : The mortgage was given July 15,1858, and was for the purchase of a land warrant with which the land was entered. In April, 1880, nearly twenty-two years thereafter, the payee and mortgagee made an assignment to plaintiff, the note and mortgage having themselves disappeared during those years. The mortgagee was a banker in Washington, D. C. The papers were at first in the hands of a cousin living in Kansas, but the latter leaving to go into the confederate service in 1861, they were passed to Gov. Wilson Shannon, who acted for a series of years as the agent and attorney of the mortgagee, and were probably destroyed at the time of the Quantrell raid upon Lawrence. A deed in proper form, of date July 26,
Now the argument of plaintiff is, that the mortgagor having been a non-resident of the state since 1860, the note and mortgage were not barred by the statute of limitations, and that as the deed to Shannon was void and passed no title, defendants were'not in any position to question the present validity of the note and mortgage, or a decree in favor of plaintiff. But this is as broad as it is long. If they have no rights in this land, they should not have been made parties. So long as plaintiff has made them parties, if they have any rights in the land they.may defend them against every opponent. Mere possession becomes the basis of title, and a party having that possession may defend it as against anyone who seeks to establish a right which if enforced will destroy-that possession. If these defendants had not been made parties, plaintiff could have obtained a decree of foreclosure and sale against the mortgagor, and then, receiving a deed in such foreclosure prooeed-
Was there evidence to sustain the finding of payment? In reference to this it may be said that very slight evidence will sustain such a finding asdo a debt twenty-two years old. The very inaction of the holder of the claim during these years is strong evidence of payment. No individual, much less a banker, permits a debt, secured by mortgage, to go a score of years, undischarged and uncollected. And there was evidence of payment, beyond the mere lapse of time. One witness testified that on looking over the list of Kansas notes and mortgages held by Fant and kept by the latter, he saw this marked as settled, and that Fant told him it had been settled by Gov. Shannon. The latter was the agent.and attorney of Fant during those years. He received an apparent title at least, and then sold the land and executed a conveyance. His action remained unchallenged for nearly a score of years. Neither mortgagor nor mortgagee questioned. The principal did not call the agent to account. Not until Gov. Shannon died is any attack made upon the transaction. Then the mortgagor is visited in Illinois, and a quitclaim deed obtained, for which three dollars are paid. An assignment is obtained from the mortgagee, and foreclosure is commenced. Now under these
There being no other questions in the case, the judgment will be affirmed.