Tarr v. Aulthouse ( 1892 )

Opinion by

Simpson, C.:

On the 28th day of April, 1886, one Moses M. Chase and wife sold and conveyed to the plaintiff in error certain lands in Nemaha county, by a general warranty deed, for a consideration of about $8,000, which was duly paid. At the time of the conveyance there was a recorded mortgage on the land in favor of Bartlett Bros, for $300, the validity of which was disputed by Chase. For the purpose of indemnifying the purchaser of the lands against the payment of this mortgage, Chase as principal, and John Aulthouse as security, executed and delivered to the purchaser, Hammond Tarr, the following written instrument:

“Know all men by these presents, that we,' Moses M. Chase as principal, and John Aulthouse as security, are held and finally bound unto Hammond Tarr to the amount of $500, to the payment of which we hereby bind ourselves, our heirs, administrators, and assigns, firmly by these presents, if default be made herein. The condition of the above is such, that whereas, the firm of Bartlett Bros., of St. Joseph, Mo., have put upon the records of Nemaha county, Kansas, a pretended mortgage upon the lands sold by the said Moses M. Chase to the said Hammond Tarr: Now, if the said Moses M. Chase shall institute or defend (within a year) any suit that may be instituted to foreclose said mortgage, and shall pay any amount that may be adjudged, if any, due said Bartlett Bros, thereon, then the above to be void; otherwise, to remain in full force and effect. Witness our hands, this 21st day of May, A. D. 1887.

[Signed] M. M. Chase.

John Aulthouse.”

On the 26th of November, 1888, Bartlett Brothers commenced an action to foreclose their mortgage, and on the 11th day of March, 1889, a judgment for foreclosure was rendered in their favor for $413.15, including costs. This judgment Tarr paid to keep the land from being sold, and on the 15th day of June, 1889, Tarr brought this action on the written contract of indemnity against Aulthouse, the-security. Aulthouse demurred to the petition for the reason that the facts stated therein were not sufficient to constitute a cause of action, the theory of the demurrer being that, as no action had been brought by Bartlett Bros, to foreclose their mortgage within a year from the date of the written instrument, no liability was created against Aulthouse. The trial court sustained the demurrer, and the sole question here for review is the construction given the written contract of indemnity by such ruling. The ruling in effect is, that under its terms a suit to foreclose must have been commenced within a year from the 21st of May, 1887, in order to make Aulthouse liable. This is an erroneous construction. The written instrument under consideration was one executed by Chase as principal and Aulthouse as surety, for the benefit of Tarr. By the express terms of the writing, Chase agreed to do three things: Eirst, he bound himself to institute a suit (within a year) for the purpose of relieving the land of the lien of the mortgage; second, he bound himself to defend any suit instituted (within a year) to foreclose the mortgage; third, he bound himself to pay any amount that might be adjudged due Bartlett Bros. We do not think that the third obligation is limited by the words “within a year,” but if it is, it makes no difference. These three things he agreed to do within a year, according to the construction contended for by defendant in error, and if he did them, or, probably, if the performance of any or all of them had been commenced within the year, then the written obligation to be void; otherwise, to remain in full force and effect. In other words, Chase must act within the year next ensuing after the date of the contract, and must perform one of three conditions in order to absolve Aulthouse from liability. He must commence a suit, he must defend a suit for foreclosure commenced within a year, or he must pay Bartlett Bros., or in some way relieve the land from the burden of the real or apparent lien. This contract was made to indemnify Tarr. A reasonable construction, that accomplishes the evident intention of the parties, must be given the written instrument. The inducements stated in the petition are admitted by the demurrer. But apart from all these considerations, we give the written instrument its natural ■ construction, the only one that it is susceptible of, according to our view, and the result is that we recommend that the judgment be reversed, and the cause remanded, with instructions to overrule the demurrer.

By the Court: It is so ordered.

All the Justices concurring.