64 P. 990 | Kan. | 1901
The opinion of the court was delivered by
This was an action by Cornelius Perry to recover upon a promissory note for $1000,
This action was brought November 26, 1895,- a little more than a year after the last payment was made on the note and mortgage, and Mrs. Horack and the three children were made defendants. The children contended that as no payment had been made expressly for them and as more than five years had elapsed since the maturity of the note, the action
Was the plaintiff entitled to have his mortgage enforced against all of the mortgaged land ? The payments by Mrs. Horack certainly kept the note alive, and the general rule is that the mortgage lives as long as the note it was given to secure. The minors were not parties to the note and mortgage, but they inherited the land subject to the lien of the mortgage. It is contended that the payments made by the widow should be regarded as payments made for and in behalf of the children. She was their natural guardian, and with them occupied the mortgaged premises as a homestead. It was her legal and moral duty to take charge of the homestead property, and to protect and use the same for the benefit of herself and the minor children. She not only represented to plaintiff that she was going to pay the debt and protect the home for the family, but all of them had a common interest in preserving and keeping it. The homestead is an entirety, and there was such a unity of interest in it that it could not be partitioned before the youngest child arrived at majority or the widow again married.
Then, again, the payments made on the debt were from the products of the homestead itself, which it was her duty to use for the benefit of the minor children as well as herself. Since they had a joint and common interest in the homestead and were all interested alike in protecting the equity of redemption or title remaining in the homestead, it is contended that
If the statute of limitations does not bar a recovery on the note, it does not bar a foreclosure of the mortgage. It is conceded that the debt is not barred as to Mrs. Horack, and of course there is no bar as to the children, as they were not liable for the debt when an interest in the property passed to them, and they have not since assumed its payment. They are, therefore, not concerned as to whether payments are made or not. Mrs. Horack was liable for the entire debt, and the mortgage which she executed was given to secure the entire debt and upon all of the land. The death of her husband did not diminish the amount of the debt nor restrict the lien of the mortgage to a half or any other fraction of the land described in the mortgage. If payment had been made by one not obligated to pay the debt, there would be more reason to say that such payment did not keep the mortgage alive ; but here it was made, as we have seen, by one who-owed the whole debt and who joined in a mortgage given to secure the whole debt. The children had not assumed any personal liability for the debt and had nothing to do with the matter of payments, but they took the land burdened with the mortgage, and so long as the statute of limitations does not run against the debt secured by the mortgage, it would seem that the mortgage itself might be foreclosed and the property sold to pay the debt which the mortgage was given to secure. (Waterson v. Kirkwood, 17 Kan. 9; Schmucker v. Sibert, 18 id. 104, 26 Am. Rep. 765.)
Considering the interest of the parties in the homestead, their relations to the debt and to each other, we conclude that, the debt having been kept alive, the mortgage which it was given to secure is enforceable against the entire property included in it. The judgment of the district court will therefore be reversed, and the cause remanded with directions to enter judgment foreclosing the mortgage upon the entire tract of land described in the mortgage.