Commercial State Bank v. Baker

Citations

• 99 Kan. 248
• 161 P. 620

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — By Second Mortgagee — Payment or Satisfaction of First Mortgage — Proper Matters of Inquiry. In a replevin action brought by a second mortgagee against the mortgagor and against the holders of a prior mortgage who are in possession of the property, the plaintiff, without having plead payment or satisfaction of the prior mortgage, may offer proof of payment or satisfaction, or of any fact which tends to defeat the priority of the first mortgage;' and the fact that he has plead in his petition that the first mortgage was fully paid will not prevent him from offering proof of satisfaction otherwise than by the payment of money.</p> <p>2. Same — Claim of Mortgagor for Unliquidated Damages against First Mortgagee — Properly Adjudicated.‘ In such an action, where the defendant mortgagor files a cross-petition against his codefendants, claiming that the first mortgage has been paid -and that he is the owner of the property, subject only to the lien of the plaintiff, he may set up as against his codefendants a claim for unliquidated damages arising out of transactions connected with their possession of the property in controversy.</p>