Munsell v. Beals , 5 Kan. App. 736 ( 1897 )

Johnson, P. J.

We are met at the threshold of this case by a motion of the defendant in error to dismiss the action, for the reason that the parties to be affected by a reversal of the judgment are not all before the court. From a careful examination we are satisfied that the parties to be affected by a reversal of this case are all before the court. It is true that a personal judgment was rendered against Perry Wilden, but the court had acquired no jurisdiction oyer him so as to render a personal judgment, and the personal judgment so far as Perry Wilden is concerned is a nullity. Therefore the motion of the defendant in error to dismiss this action is overruled. This brings us to the consideration of the question as to whether William W. Munsell had assumed and agreed to pay the mortgage of the plaintiff below. The record shows that the lands conveyed by Younger and wife to Munsell were only a part of the same property mortgaged by Wilden and wife to tlie plaintiff below. The purported deed describes other land than the land mortgaged, and contains this statement: “Together with the appurtenances thereto belonging, on which there is a mortgage of $625.” It nowhere specifies that Munsell agreed to pay the mortgage executed by Anna L. Wilden and Perry Wilden to the assignor of the plaintiff below. It does not describe or pretend to set forth any particular mortgage that is on the property described in the instrument from Younger and wife to William W. Munsell; nor does the record anywhere show that the title to the mortgaged property, or any part .of it, has passed by mesne conveyances from Anna L. Wilden and Perry Wilden to Munsell. We do not think that, under the covenants in this instrument, Munsell ever assumed or undertook to pay the note of the plaintiff below. The record and the evidence nowhere disclose the fact that there was no other mortgage on the property conveyed by Younger and wife to William W. Munsell. We think the motion for a new trial should have been granted.

The judgment of the District Court is reversed and the case remanded with direction to set aside the judgment of the court and grant a new trial herein.