Howard v. Tourbier

Citations

• 98 Kan. 624
• 160 P. 1144
• 1916 Kan. LEXIS 146

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal and Error — Testimony Not in Transcript — Can Not he Considered on Appeal. Testimony which it is not claimed appears in the-transcript of the evidence can not be considered in this court for any purpose. (Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550.)</p> <p>2. Hamtc — Harmless Error — Failure to Make Formal Proof of Title. While it is necessary in order to sustain a judgment of foreclosure that there be proof of title in the mortgagors and of title in the defendant, it is held in this case that, since the appellant makes no claim that the mortgagors were not in fact the holders of the legal title, is not denying the source of his own title, and makes no claim that he has the least defense to the action, he is not entitled to a reversal, although the transcript of the evidence fails to show formal proof that when the mortgage was executed the mortgagors owned the property.</p> <p>3. Mortgage — Foreclosure — Deficiency — Receiver — Code Provision Not Repealed. Section 498 of the civil code, which is part of an act revising the procedure in the sale of real estate on execution or other judicial process (Laws 1893, ch. 109), does not repeal the general provisions of section 266 of the code, which authorizes the appointment of receivers in actions for foreclosure where it appears that the property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed and the property is probably insufficient to discharge the mortgage debt.</p> <p>4. Same — Foreclosure—Receiver—Discharge after Sale — Waste. A receiver appointed under section 266 of the code before sale in a foreclosure case should be discharged when the sale is confirmed, and it is error to continue the receivership after the sale without a showing under section 498 of the code that a receiver is necessary to prevent waste. ■</p>