The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1898-02-18

their determination. Error from Green
wood county. Affirmed. The opinion of
the court was delivered by ]. Schoonover.
G E Oscar Wistrand. plaintiff in error,
VS.. w. c. Parker, defedant in error.
Where the eight promissory notes sued on
each contain the following words: This
note is secured by a mortgage on real
estate This note may become due and
payable at once by reason of the failure
to comply with the conditions OF the &C
companying mortgage which Is made a
part hereof" and where the mortgage Sc
curing the notes and therein referred TO.
providing that the notes which by their
terms matured at different dates should
become at once due and payable upon the
failure of the mortgagor TO pay the taxes
and assessments levied against the mort
gagged land before the same became delin-
quent. Held that the notes were non-ne-
gotiable
. Where the defendant rested his de-
Tense as stated TO the court, on the trial.
upon the single proposition of the nom
negotiability Of the notes, and offered no
evidence in support of his answer, and
where the court held the notes to be ne
gotiable. but its Judgment was the same
as would have been properly rendered had
the averments of the answer been prov
en-, and the notes been held non-negotia-
bic, such judgment will be sustained. Al
1irmed. Error from Mcpherson county.
The opinion of the court was delivered
by Judge Milton.
c. NJ. Condor, plaintiff in error, VS. Lou
Wood, and Lou Wood as administrator OF
the estate of William II. Wood. deceased,
defendant in error. Where the proceed
ings prior to and after a sheriff's sale
of real estate We're regular and in confor-
nifty with the foreclosure judgment and
no extrinsic facts affecting the validity
of the sale were shown in support OF the
motion to set the same aside. Held error
to sustain such motion.
At the sherin's sale on April IS. 1892, the
plaintiff in error and mortgage pur-
chased the mortgaged land for Sl00, sub
ject TO a first mortgage of $500, the
amount due at that date Oh his judgment
being $3.50, and his mortgage being a
second lien on the premises. On April
21st he filed motion for confirmation of
the SALE but on May End the court con-
tinued the hearing of said motion until
the succeeding September term of court,
and the defendants for the first time ap
peared in the action and orally objected
to the confirmation of thesale. the sole
ground of their objection being that Con-
don had been paid his claim in full sub
sequent TO the date of the sale. 1t APP
pears that the land had been rented as
a farm during the years 1891 and 1882, and
that the receiver in the foreclosure suit
had collected rents from said premises
amounting in the aggregate to $141.S6; the
expenses in collecting the same being
$1l.50, leaving a net balance of sl36.36 No
allowance had yet been made TO the re-
ceiver for his services. The costs Of the
action, including the costs of the sale,
amounted to S4S.S5. The delinquent taxes
on the land amounted to $3.50. Condor
had collected the rentals accruing be-
tween the date of the sale and the date of
the hearing of the motion to confirm the
same the net proceeds so collected being
s150.37 The foregoing facts were agreed
to by the parties, and upon these facts
the court based its decision in overruling
the motion TO confirm the sale The court
ordered that out of the funds in the
hands of the plaintiff, and of the receiver
the plaintiff should be paid the amount
of his judgment and the interest thereon;
that after the costs of the action had been
paid, he balance should be delivered to
the defendants; and that the receiver
should thereupon be discharged. To this
action of the court Condor duly excepted
and by proper proceedings the case Is
presented to us for review. Error from
Kingman county. Reversed. The opin-
ion of the court was delivered by Judge
Milton.
The Arkansas City bank. VS.. Dewitt
Mcdowell, defendant in error.
l. An allegation Of the existence of au-
thority shall be taken as true unless the
denial thereof be verified by the affidavit
| of the party. hisagent or attorney.
.. An attorney may testify that a GER
tain person is his client. This IS not a
| privileged communication.
8. The incomplete and defective allega-
| lions in the petition in this case are fully
| cured by the allegations in the answer.
1. The answer and reply raise the issue
| of probable cause and want of malice and
the case was tried upon that theory by
the plaintiff in error. Affirmed. Error
| from Cowley county. The opinion Of the
| .. .,.,,. 5ol;,,ored nv Judga DauuiSon.