Disney v. Healey

The opinion of the court was' delivered by Smith, J.: Several of the letters attached as exhibits to the petition seemed to acknowledge an indebtedness or obligation from Healey to Disney; probably the following, under the date of April 9,1900, less than five years before the commencement of this action, is the strongest, to wit: “W. O. Disney, Russell Springs, Kan.: Dear Sir and Friend — Yours enclosing deed to execute received. You don’t say anything about canceling my note. I am willing to make the deed, but must have the note and mortgage released, and note returned to me. Yours truly, T. J. Healey.” We think this is a sufficient acknowledgment of an indebtedness to toll the statute, being, in effect, a proposition to deed land in consideration of the release of the note and mortgage and the return of the note. (Pracht v. McNee, 40 Kan. 1, 18 Pac. 925.) Healey had the legal title to the land at the time he acknowledged the indebtedness. The question remains whether the defendant Jordan was bound by his alleged contract with Healey to assume and pay the latter’s indebtedness to the plaintiff. [328] It was said by Mr. Justice Brewer, in Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765: “Where a note and mortgage are once barred, a subsequent revivor of the note by part payment, promise, or acknowledgment of the payor, will revive the mortgage so far as it affects the interest of the payor in the mortgaged premises.” (Syllabus.) The mortgage,' as well as the note, was therefore revived as to Healey at the time of the conveyance, by himself and wife, of the land to Jordan, and the latter took it subject to the mortgage lien, and agreed, in consideration, or in part consideration, of such conveyance, to pay the mortgage indebtedness. The mortgage was revived as to him, and the statute of limitations as to him commenced to run at the time of such conveyance. (Schmucker v. Sibert, supra.) The judgment of the district court is reversed, and a new trial granted. All the Justices concurring.