Hendricks v. Brooks

Citations

• 80 Kan. 1
• 101 P. 622
• 1909 Kan. LEXIS 1

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Extrinsic—Identity of a Mortgage with One Described in a Deed. The identity of a mortgage, dated November 1 and acknowledged November 20, with a mortgage described in a deed as for the same amount and as dated on the 20th day of the same month, is a question of fact which may be proved by evidence aliunde.</p> <p>2. Contracts — Statute of Frauds — Assumption of a Mortgage— Acceptance of Deed — Evidence. The acceptance of a deed by the terms of which the grantor warrants the land to be free and clear of all encumbrances, “except a mortgage of $500, dated November 20, 1888, which grantee assumes and agrees to pay,” makes it a contract in writing binding upon the grantee to pay the mortgage, and suit can be instituted upon it and the same rights maintained as though the deed were also signed by the grantee; and a subsequent conveyance of the land by the grantee is conclusive evidence of his acceptance of the deed and of the contract therein contained.</p> <p>8. Limitation of Actions — Foreclosure of a Mortgage — Absence from the State. Upon the acceptance of such deed the debt becomes the independent debt of the grantee to the holder of the mortgage. The limitation of the time for bringing a suit thereon begins to run upon such acceptance, and the running of the statute may be suspended by the absence of the obligor from the state, as in other cases.</p> <p>4. - Foreclosure of a Mortgage. One to whom the grantee in such deed conveys the land takes the title subject to the mortgage lien, if such mortgage be of record, and the lien of the mortgage subsists against the land so long as a suit may be maintained on the indebtedness against his grantor; in other words, a suit to enforce the mortgage lien is not barred by limitation until an action against the debtor for a personal judgment is also barred.</p>