Lichty v. McMartin , 11 Kan. 565 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

This was an ordinary action on two promissory notes. The defendant (now plaintiff in error) set up as a defense in substance as follows: “The notes are secured by a certain mortgage on a certain mill in the State of Illinois; these notes with said mortgage, together with certain other notes not yet due, were given by the defendant to the plaintiff on January 20th 1868, in the state of Illinois, for the purchase-money of said mill; that about October 1869 defendant, with the knowledge and approbation and consent of plaintiff, sold the remaining estate in him in said mill to one Louis Wood, of Dixon, Illinois; that in said sale to said Wood by the consent of plaintiff it was there and then expressly stipulated and agreed between defendant and said Wood that the latter took said mill subject to the mortgage of plaintiff, and charged with said debt, said debt so assumed by said Wood being made a part of the consideration of said sale; that said property still exists, unchanged, and undiminished in value, and is of ample and of abundant value to pay off and discharge said debt.” The plaintiff demurred to this defense. The court sustained the demurrer, and the defendant excepted. . The defendant also made two motions to stay execution, which motions were overruled by the court, and the defendant excepted.

The only question raised by said demurrer and by said motions, and indeed the only question involved in this case is, whether the plaintiff may sue on said notes alone, and in Kansas, or whether he must go back to Illinois, and there institute a proceeding on the notes and mortgage together and for the purpose of making the mortgaged property pay the debt. We suppose there can be no doubt about the plaintiff’s right to sue on the notes alone, and in Kansas. The debt is the primary obligation between the parties. The notes are the primary evidence of that debt, and the mortgage is only ^ security for the payment of the notes. The action on the notes is transitory; the action to foreclose the mortgage is. local; and while the plaintiff can foreclose his mortgage in the county and state only where the property is situated, yet he may sue on the notes wherever he may find the defendant. And he always has his election whether he will sue on the notes alone, or sue on the notes and mortgage together. This is not only the law in Kansas, but it is also the law in Illinois, and elsewhere. (Vansant v. Allmon, 23 Ill., 30, 33; ánd cases cited in brief of defendant in error.) In this state there is nothing like a strict foreclosure of a mortgage. The plaintiff must always sue for the debt whether he asks to have the mortgaged property applied in payment thereof or not; (Code, §399; ch. 87, Laws of 1870, page 175, §13;) and his judgment is always a personal judgment for the debt whether he obtains an order to have the property sold to satisfy the debt or not.

Before closing we would say that there is no allegation in the defendant’s answer that the plaintiff ever agreed to relinquish any right that he at any time had by virtue of said notes and mortgage. He merely knew and consented that the defendant should sell the mill to Wood; but the agreement that Wood should pay the mortgage was between Wood and the defendant alone. The plaintiff never released the defendant. And we see nothing especially equitable in requiring the plaintiff to go back to Illinois to commence his action.

The judgment of the court below is affirmed.

All the Justices concurring.