The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-09-11
Holds That They Can Not Re.
cover on Old Securities.
LEAVES BEATEN PATH.
Courts Nay Consider Equity as
Well as Law.
Spectators Must Come Into
Court With Clean Hands.


Sept. 11.-Judge William H. Thomp-
son, the Democratic Judge of the Thir-
ty-second judicial district, today de-
cided, in one of the most important
and carefully prepared opinions ever
handed down in this part of the state,
that the mortgage spectators can not
buy up old and forgotten mortgages
given twenty years ago in BOOM
days, and force the new settlers in
western Kansas, who hold titles un-
der sheriff sales, ETC., to pay these
mortgages or get off the land. More
than half the litigation in western
Kansas counties is over these mort
cages.
Judge Thompsons opinion is that
the present holders of these old mort
cages hold them purely as spectators.
having bought them for little or moth
ing from the original holders Under
such circumstances. Judge Thompson
1 holds that the Spectators must come
into court with clean hands; that the
court has right to consider the
equities as well as the law in the
case; and that the doctrine of laches,
or neglect, applies to the controversy,
and disbars the holders of the old
mortgages from interposing their
claims
The title of the case in which this
important decision was rendered is
Van Hall & Huffman versus Frank L.
Cessna, Peter Goertz, ct al Cessna
and Goertz are the settlers who hold
the land, and have been paying taxes
and making improvements upon it
| since 1901.
| The original mortgage was given in
1888, and bore IL per cent interest.
When the boom collapsed, the man
who gave the mortgage concluded that
his investment was gone. The origin
| al mortgagor disappeared, the land
was worthless, the taxes were unpaid,
and the county took possession. In
course of time, the county issued tax
deeds to the property, and the land
was bought up by local investors 1t
/ has now increased so much in value
t-tfrat IT iS good security for the orig
| inal mortgage, and the spectators
and landgra bbers have. been hunting
up these original mortgages and buy
ing them. Under the Kansas statutes
| they do not outlaw because they are
| held by nonresidents.
Judge Thompsons opinion covers
! twenty typewriter pages, and is the
result of long study by Judge Thomp-
son, not only of the authorities sub
mitted by the attorneys in the case,
but of many other authorities which
were consulted in the state library at
/ Topeka on a personal visit which
Judge Thompson made to the state Ii
1 brary.
The attorneys for Van Hall & Huff
man will appeal the case to the su-
preme court. and express the utmost
confidence that they can reverse Judge
Thompson's decision, and force the
western Kansas settlers to give up
their farms to the mortgage specula-
| tors.
The following is a portion of Judge
n 1r,Y,o rNce on
Nearly all of the elements which
enter into the question of laches are
present here; first, the long lapse of
time. Second, assent to and acquies-
cence in the adverse claim. Third
abandonment by the mortgagor by fail
| ing for a great length of time to as
| sert his claim. Fourth, the speculative
character of the property involved,
| Fifth, change in circumstances and
| conditions which render it impossible
to grant relief with equal justice to the
| defendant. Sixth, expenditure of money
for taxes. the purchase. of the property
and improvements. Seventh, delay
| working prejudices to third persons.
Eighth, the loss of evidence by the
same becoming obscure or lost on ac-
count of the death or removal to parts
| unknown of the participants in and
| witnesses to the original transaction,
making it difficult to ascertain the real
facts and to do exact justice between
son whatever given or offered on the
part of the plaintiffs for their long
silence. negligence and delay.
so taking everything into consid
Grafton, it appears to me that if there
ever was a case in which. for the peace
of society, the court should act upon
| it's own inherent doctrine of discourag-
| ing antiQuated demands by refusing to
| interfere where there has been gross
negligence and laches in the prosecu-
tion of claim, and long acquiescence in
| the assertion of adverse rights, that
! this is one of them. 1t is to the public
] interest that stability in the title to
| property should exist, and that all un-
certainties and disputes as to owner
| ship of lands should be speedily put at
rest. Hence there lies at the founda-
ton of the principle that lapse of time
| will become a defense to the title of the
one in possession of property not only
personal rights and equities, but also
| q recognition of the higher public in
| terests which can only be subserved
by putting at rest, as speedily as pos
| sible, all doubts and uncertainties
| touchir- the title to realty, to which
| end it is the duty of courts to dis
courage delays in the assertion of con-
| ficting claims thereto.
when the delay is such as to pre-
vent substantial justice between the
parties, the courts are ready to de-
| clare that the remedy is inequitabIe
and the suit must be dismissed. OF
course, the assignees may sustain some
loss. but it is a familiar principle of
equity that, where a lC<s must be
| borne by one of two parties, it must
be borne by him whose negligence oc-
| casioned it.
| 1.-The defendant by his expenditure
of money and labor upon the land has
| made valuable what was barren
tract practically worthless. and it has
now enhanced by his labor an hun
/ dred fold No bad faith or fraud can
l him On the tIar.