Investment Securities Co. v. Bergthold

The opinion of the court was delivered by Smith, J. : We will consider whether the note sued on and the mortgage sought to be foreclosed were barred by the statute of limitations as to the defendant in error R. L. King. It is first claimed by the plaintiff in error that the extension agreement executed by the Iowa Cattle- Company on May 8, 1891, with coupons attached, and the payment of said interest coupons up until January 1, 1893, prevented the running of the statute. It will be noticed that [817] this extension agreement was between the cattle company and Jarvis, Conklin & Co., and that the interest coupons were payable to the latter. The original note and mortgage, however, from Bergthold and wife, were given to the Jarvis-Conklin Mortgage Trust Company, and the latter, in March, 1888, more than two years before the execution of the extension agreement, had duly assigned the mortgage in question to the Mercantile Trust Company, and at the time of the execution of the extension agreement said Mercantile Trust Company was the owner of said mortgage, as shown by the evidence in the case. Were we to sustain the contention of the plaintiff in error that Jarvis, Conklin & Co. and the Jarvis-Conklin Mortgage Trust Company were identical, still the extension agreement appears to have been given to a stranger to the mortgage. (Sibert v. Wilder, 16 Kan. 176; Schmucker v. Sibert, 18 id. 104.) The payment of interest to a stranger not shown to be acting for the person entitled to receive said payment cannot stop the running of the statute of limitations. The reply to the answer of King avers that E. M. Donaldson and J. L. Hosmer have been non-residents of the state of .Kansas since the 22d day of August, 1893, and that plaintiff, during all the time subsequent to that date, had been unable to procure service of summons on either of them. This reply was insufficient under the peculiar reading of our statute. The fact of non-residence is insufficient to bring the case within the exception and prevent the running of the statute. The question is not one of domicile but of personal presence in the state. (Mary E. Lane v. The National Bank of the Metropolis, 6 Kan. 74; Hoggett v. Emerson, 8 id. 265; Coale v. Campbell, 58 id, 484, 49 [818] Pac. 604.) Nor does the fact that the plaintiff below was unable to procure service of summons on said parties assist it to extend the time of the running of the statute. While the reply was demurrable, yet the court below treated it as sufficient and permitted testimony to be introduced regarding the absence of Donaldson and Hosmer from the state. We have examined this testimony and fail to find proof sufficient to show that since the date named in the reply the defendants Donaldson and Hosmer have been absent from the state of Kansas. Complaint is made of the exclusion of the testimony of Minnie C. Donaldson. She testified at the trial that she had been the wife of E. M. Donaldson, and that the latter had not resided in the state since August, 1893, and was not then in the state. On cross-examination she made answers to questions as follows: “ Ques. Whatever you have known about his whereabouts has been such as you have learned from communication? Ans. Yes, sir. Q. That was while you were his wife? A. Yes, sir.” The court then, on motion of the defendant below King, excluded such testimony from the consideration of the court. The testimony, in our judgment, relating as it did to residence in the state, and to the fact that Donaldson was absent from the state at the time of the trial, was incpmpetent. But in addition to this, if the knowledge of her husband's residence was derived from a communication from him, she was disqualified to give testimony concerning it. (Gen. Stat. 1897, ch. 95, § 334; Gen. Stat. 1889, ¶ 4418.) And if the knowledge of his residence was communicated to her by other persons than her husband, her testimony would be hearsay. The court below was justified, under the [819] testimony offered, in finding that the defendants Donaldson and Hosmer were not absent from the state of Kansas a sufficient length of time to prevent the running of the statute of limitations. The judgment of the court below will be affirmed.