Nesbitt v. Chesebro

Citations

• 89 Kan. 863
• 133 P. 545
• 1913 Kan. LEXIS 138

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale —• Contract • — • Assumption of Interest on Mortgage. A fair interpretation of the contract of sale in this case is that the purchasers assumed payment of the interest on the Seaton mortgage only from the date of the contract.</p> <p>2. Journal Entry — Void Judgment — Motion to Expunge — Costs of Motion. Where a journal entry is placed of record which purports to be the record of a judgment that was in fact never rendered, and the party appearing thereby to be the judgment debtor files in the court to which the record pertains a motion to expunge the false record, which motion is resisted by the other party but is sustained, it is not within the discretion of the court to tax the costs of the motion to the prevailing party.</p> <p>3. Petition —■ Facts Warranting Judgment — No Prayer for Money Judgment. An answer and cross-petition in which an answering defendant states facts which entitle him to a judgment for a certain sum of money, and in which answer is a prayer that his lien may be preserved, and for such other relief as in equity he may be entitled to, is sufficient, if found to be true, to entitle him to such judgment as the facts stated ■ warrant, although there is no prayer for a money judgment.</p> <p>4. Sale — Real Estate and Personal Property — Unpaid Balance— Lien on Real Estate. Where a written contract is executed for the sale of a tract of land and a number of articles of personal property at an aggregate price, and payments are made thereon, it is not error, in an action to foreclose. the vendor’s lien, for the court to award a lien on the land for the unpaid balance of the purchase price, provided there is any provision in the contract from which the court may fairly infer that the amount paid is equal to or exceeds the value of the personal property as contemplated by the parties when making the contract.</p> <p>5. Mortgage Foreclosure — Separate Tracts of Land — Sold as One Tract — Judicial Discretion. The