Kennedy v. Gibson

Citations

• 68 Kan. 612
• 75 P. 1044
• 1904 Kan. LEXIS 151

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Notes — Mortgage—Provisions in Note Prevail. Where a promissory note provides that default in the payment of interest shall mature the whole debt, at the option of the holder, and a mortgage given to secure payment of the note provides that defaults shall mature the debt, but makes no mention of an option in the holder, the provision in the note will control.</p> <p>2. -Limitation of Actions. In such a case, and where there is default in the payment of interest and the holder does not exercise the option and declare the debt due, the statute of limitations will not begin to run until the expiration of the time originally fixed for the payment of the note.</p> <p>3. - Sufficient Defense — Fraud. An answer alleging illegality and fraud in the inception of a note sets up a defense, and the presumptions in favor of the right and title of the holder are overcome, and to meet such a defense it devolves upon the holder to show that he or some antecedent holder took the note before maturity, in good faith, for value, and in the usual course of business.</p>