Hendricks v. Brooks

The opinion of the court was delivered by Smith, J.:

Four questions are involved in the determination of this case: (1) The identity of the mortgage foreclosed with the mortgage which Tate assumed and agreed to pay in his deed from Collins and wife. (2) Did the acceptance of the deed from Collins and wife by Tate constitute an independent contract of indebtedness from Tate to the mortgagee or his assignees upon which the latter could, with personal service, have obtained a money judgment against Tate? (3) Was. the personal action, if any such action ever existed in favor of an assignee of the mortgage against Tate, barred by the statute of limitations? (4) If the mortgage mentioned in the deed was the same as the one assigned to Brooks, and if, as it appears, an action on this indebtedness was barred by limitation as against Collins, was the lien of the mortgage upon the land thereby destroyed?

*4 The question as to the identity of the mortgage is simply a question of fact to be determined upon evidence by the court. It is said that because the mortgage was described in the deed as dated November 20, <1888, while the mortgage in suit is dated November 1, 1888, and acknowledged on November 20, 1888, this of itself conclusively proves that there were two instruments. The evidence, however, showed that Collins did not perfect his title to the land until November 3, 1888, and it is as reasonable to suppose, especially as the mortgage was recorded November 21, 1888, that it was not completed or delivered until the 20th as that it was executed and delivered two days before he acquired title to the land. At any rate this is not conclusive, but is only a circumstance which may be overcome by other evidence.

The ■ plaintiff, to show the identity of the instruments, produced a bonded abstracter, who testified that he had made an abstract of this land and that there was no other mortgage of record thereon dated prior to the time of the execution of the deed from Collins to Tate. It is urged that the evidence of the bonded abstracter is incompetent. He testified, however, to nothing said to be contained in the record, but simply to the negative — that there was no record of any other' mortgage existent at the time. We think the objection is not well taken. (See 2 Wig. Ev. §§ 1230, 1244.)

There was substantial evidence to sustain the finding of the court on this point, and we can not disturb it.

The evidence is undisputed that Tate, who áccepted the deed from Collins and thereby assumed and agreed to pay the mortgage debt, left the state of Kansas before the maturity of the debt and has been ever since absent from the state. ' Therefore, if there ever was any cause of action against Tate in favor of the mortgagee or his assignee, the running of the statute was suspended by Tate’s absence and such action was not barred. (Civ. Code, § 21.)

*5 It was, in substance, decided in Schmucker v. Sibert, 18 Kan. 104 , that if the cause of action upon a note is barred by limitation any suit upon the mortgage given to secure the* note is also barred, and, vice versa, if an action upon the note is not barred a suit upon the mortgage is not barred. This decision has many times been cited with approval in this court. The indebtedness of Tate to the holder of the mortgage did not originate in the execution of the note and mortgage by Collins to Frahm, but in the contract to assume the indebtedness embodied in the deed from Collins to Tate, And, so long as a suit by the holder of the mortgage could be maintained against Tate on that contract, so long survived the lien of the mortgage upon the land conveyed by Tate- to Hendricks. This question and practically all the remaining questions in this case may be answered from the following excerpt from the opinion of Mr. Justice Brewer in Schmucker v. Sibert, supra:

“The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing signed by only the lessor makes' it a written contract binding upon such lessee; and suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee. And it is not to be considered as a mere promise or acknowledgment, as named in the exceptions to the statute of limitations, and therefore to be signed by the party to be charged. Those exceptions apply to debts already existing against the parties sought to be held, and aim to continue in force prior liabilities. But the grantee in such a deed was not liable before its execution. His liability dates from that. That is the first contract he has made, the first obligation he has assumed. At that time therefore, as to him, the statute first commences to run. Nor is he discharged by the fact that the debt as to the original debtor has since his promise become barred by the statute of limitations. For his contract is an original, absolute promise to pay the debt, and not a mere contract of indemnity, and to save the original debtor harmless. The creditor may ignore the original debtor *6 entirely, and proceed directly and solely upon this promise. The grantee is not simply a surety. His promise is not to see that the original debtor pays’, or to pay if he does n’t. But it is a direct, absolute and unconditional promise to pay the debt to the creditor.” (Page 112.)

It can not be said that Tate did not accept this deed or the contract therein contained to pay the mortgage, although he testified that he did not think he assumed and agreed-to pay the mortgage. The deed itself, produced in evidence, is conclusive of the contract therein, and the fact that he conveyed to Hendricks the title to the land which he derived through this deed is conclusive evidence that he accepted the deed with its obligations. (27 Cyc. 1345.)

We conclude that the evidence was sufficient to sustain the finding of the court that the mortgage which Tate assumed and agreed to pay by the acceptance of the deed from Collins and wife is the identical mortgage sued on; that by the acceptance of the deed from ■Collins and wife, with the contract therein contained, the contract inured to the benefit of the holder of the mortgage, who could, with personal service, have obtained a money judgment against Tate; that an action by the holder of the mortgage against Tate was not barred by limitation at the time of the commencement of this suit, the running of the statute having been ■suspended by the absence of Tate from the state of Kansas; that Hendricks took the land subject to all liens thereon which existed at the time of the conveyance from Tate to him, and that a suit to enforce the mortgage- lien on the land was not barred by limitation until the debt which it secured was so barred.

The judgment is therefore affirmed.