Lanoue v. McKinnon & Co. , 19 Kan. 408 ( 1877 )

The opinion of the court was delivered by

Valentine, J.:

Nearly all the legal questions raised in this case have heretofore been decided in other cases, and it will therefore not be necessary for us now to enter upon any discussion of them. All except the last two questions raised by the plaintiffs in error will be found settled in the following eases and statutes, to-wit: Clough v. McDonald, 18 Kas. 114, first proposition of the syllabus; Neitzel v. Hunter, ante, p. 221, first and fourth propositions of the.syllabus; Dougherty v. Porter, 18 Kas. 206, first and third propositions of the syllabus; Cooper v. Condon, 15 Kas. 572, first proposition of the syllabus; Gen. Stat. 743, sections 569, 572.

The two new questions are as follows: First, Did the court below in rendering judgment in this case declare that the mortgage of the Missouri Valley Life Insurance Company was a lien upon property not included in said mortgage? Second, Did the court below err in rendering judgment in favor of the Missouri Valley Life Insurance Company for attorney-fees ?

I. Said mortgage included the following property situated in the city of Concordia, Cloud county, to-wit: All or nearly all of block 195, with a stone grist-mill and a steam sawmill upon it, and some lots, and “all and singular the hereditaments and appurtenances thereunto belonging.” The court below in rendering judgment declared “that the said mortgage is the first lien upon the lands in said mortgage and in the said answer and in the said petition described.” Now this declaration of the court below is undoubtedly correct with reference to the lands described in said mortgage and said answer; but whether it is correct with reference to the- lands described in said petition, is questioned. The petition not only described said block, and lots, and mills, but also in connection with said block and mills mentioned a dam and water-power in the following words to-wit: “and the dam and water-power appurtenant thereto.” The plaintiffs in error also in their mortgage to McKinnon & Co., (which is the mortgage described in the petition,) mention said block and mills, and dam and water-power in the same way. That is, they admit in their mortgage to McKinnon & Co. that the dam and water-power are appurtenant to said block and mills; and there is nothing in the record that we have found tending to show the contrary. Indeed, from anything that we have found in the record said dam and water-power may have been on the land described in the said first-mentioned mortgage. But whether they were on such land or not they were appurtenant thereto, and were therefore included in the mortgage; and the court below did not err in declaring the mortgage a lien thereon. Whether the court below erred in determining the priority of the .various liens as between the various parties who are now defendants in error, is not a question for the plaintiffs in error to raise. The defendants in error are not complaining.

II, The plaintiffs in error in their mortgage to the Missouri Valley Life Insurance Company stipulated as follows: “And the parties of the first part herein promise and agree, to and with said party of the second part, that in any action that may be brought for any amount that' may be due and unpaid upon said note, or by virtue of any of the provisions of this mortgage, or to enforce the same, the party of the second part or its assigns shall be entitled to and may have, recover, and receive, of and from the said parties of the first part, ten per cent, upon the amount due and recoverable at the time payment shall be made, or judgment rendered, as and for fees and compensation of attorney or attorneys of the party of the second part or its assigns for services in such action,” etc. The plaintiffs in error claim that no judgment for attorney-fees should have been rendered in this case in favor of the Missouri Valley Life Insurance Company because the aetion was not brought by such company. McKinnon & Co. were the plaintiffs in the court below, and the Missouri Valley Life Insurance Company was a co-defendant with the plaintiffs in error. The insurance company set up in its answer its cause of action on said mortgage, and on the note which the mortgage was given to secure. This we think was in effect bringing an action on said note and mortgage. Such a view seems to be recognized in the case of Toby v. Allen, 3 Kas. 399, 412, 413. And such a view we think is generally recognized.

The judgment of the court below will be affirmed.

All the Justices concurring.