Deitrich v. Lang , 11 Kan. 636 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Lang brought his action to foreclose a mortgage. Deitrich answered that the mortgage-debt was a balance of the purchase-money of the mortgaged premises, and that there was a covenant in Lang’s deed to Deitrich that Lang “ was well seized of the premises, and had good title in fee for the premises,” which was broken, hence the title of Lang was not good. The only question then was as to the sufficiency of Lang’s title. The alleged defects are these: In Lang’s chain of title appears a mortgage-deed from Andrew B. Miller to Wm. H. Russell, of the firm of Russell, Majors and Waddell, and a foreclosure of such mortgage by Eugene B. Allen and Alexander Street, assignees of Russell, Majors & Waddell. It is claimed that the proceedings in this foreclosure suit were insufficient to transfer title, because, first, the mortgage-deed described the property as “lots 15 and 16 in block 27, in the county of Leavenworth,” without stating in what city or addition the lots were, and the petition alleged no mistake, and asked for no reformation of the mortgage. The original mortgage' was not in evidence in this action, but only the record copy in the office of the register of deeds. The petition in the foreclosure suit described the property as in Leavenworth city proper, and did not contain any copy of the mortgage. This objection therefore is not good, because the original mortgage may have described the lots as in Leavenworth city, the default of Miller admitted the allegation that the mortgage was of lots in Leavenworth city, and there is nothing to show that the description was not complete without the words “ Leavenworth' city,” or that there was any other property in Leavenworth county which could be described as “lots 15 and 16 in block 27.”

A second objection is, that the proceedings do not aver or show title to the mortgage and note, but that, on the contrary, the averments of the petition and the papers cited therein show that no such title was ever in the plaintiffs in said suit. The note and mortgage were to Vm, H. Eussell individually.The petition alleges that “the plaintiffs are the legal owners of said note as the surviving trustees of the said ¥m. H. Eussell, by virtue of a certain deed of trust executed, etc., and recorded in the office of the register of deeds of Leavenworth county.” An examination of that deed shows, it is said, that only the partnership property of Eussell, Majors & Waddell was conveyed to said plaintiff. This objection also is not well taken. The plaintiffs had possession of the note, and filed it with the papers of the case. They alleged that they were the legal owners, and the default admitted the fact. Though the note was taken in the name of Wm. H. Eussell alone, it may all the time have been partnership property, or having been individual property in the first instance it may afterward have been turned into the partnership assets. At any rate, if the payee is willing that it should be treated as partnership property, and turns it over to the assignees, and the payor makes no objection but suffers judgment to go in the names of the assignees, a subsequent purchaser of the title thus acquired, with full notice of all these -proceedings, will hardly be permitted on this ground to avoid the payment of his notes for the purchase-money.

The third and last, and indeed the main- objection is, that Andrew B. Miller, the mortgagor, was never brought into court, so that a valid, decree could be rendered against him; that the affidavit for publication disclosed such a state of facts as prevented the court from acquiring jurisdiction. The only service was by publication, and in the affidavit for publication this is the recital of non-residence:

“And the said Eugene B. Allen further saith that the said Andrew B. Miller has removed from, the state of Kansas, and now lives in the so-called Southern Confederacy, as he is informed, and that service of a summons cannot be made on the said Andrew B. Miller within this state.”

The plaintiffs in error claim that this affidavit shows that Miller was within the limits of the Southern Confederacy, and that by proclamation of the president intercourse was suspended between the citizens of the loyal and those of the rebel states, and that .therefore no contract of Miller’s could be enforced, even by a proceeding in rem. That as a general rule a state of war suspends contracts between belligerents, and prevents any proceedings to enforce them, no one will seriously question, though it has been denied that this rule goes so far as to stay proceedings in rem. Dean v. Nelson, 10 Wall., 158; Dorsey v. Dorsey, 30 Md., 522; Meyer v. Subley, 53 Ill., 61. But we think it also well settled that if a person voluntarily went from a northern state into rebellion, he cannot complain of legal proceedings regularly’ prosecuted against him as an absentee. Ludlow v. Ramsey, 11 Wall., 581; Harper v. Ely, 2 Chicago Leg. News, 350; Foreman v. Carter, 9 Kas., 674. Now we think a fair construction of this affidavit brings the case within this rule. The note on which suit was brought was executed in Kansas. The affidavit alleges a removal. That implies a residence, which by voluntary act has been changed. An involuntary change would hardly be characterized by the active voice of the verb “remove.” But it may be said this does not allege a removal since the commencement of the war, and to aid the rebellion. True; but it does not allege that it was not sincfe that time, nor for that purpose. Residence once acquired is presumed to continue until a change is shown. The affidavit does not show that Miller was entitled to the protection of the president’s proclamation, or the rights of belligerents. It tends rather to show that he was not. And before the courts will declare judicial proceedings, regularly had, to subject property within this state to the payment of debts contracted here, void on the ground’ that the debtor was within rebel lines, and could not be sued, it must be’ made clearly to appear that he was entitled to the rights of belligerents. It is said however that this .objection is not made by the debtor, but by a purchaser, objecting to a doubtful title. If the objection was made, before the conveyance, to being compelled to complete a contract of purchase, and not after the conveyance to the payment of the balance of the purchase-money, the objection might perhaps be entitled to more consideration. The title of the purchaser as against Miller would be no stronger, even, if the affidavit simply alleged non-residence, and contained no intimation as to Miller’s present residence. For if, as a matter of fact, Miller was entitled to the rights of a belligerent he would not be concluded by the silence of the affidavit.

The judgment of the district court will be affirmed.

All the Justices concurring.