Brewster v. Madden
Supreme Court of Kansas
Error from Cherokee District Court. Foreclosure, brought by Brewster against the widow and children of Leonard C. Madden, deceased. The mortgage was given by said Leonard C., and Catharine C. his wife, February 17th 1871, and was upon four lots in the city of Baxter Springs, and eighty acres of land then held by said Madden under the preemption act. The district court, at the June Term 1873, held said mortgage invalid as to the eighty acres, and gave judgment accordingly.
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Error from Cherokee District Court. Foreclosure, brought by Brewster against the widow and children of Leonard C. Madden, deceased. The mortgage was given by said Leonard C., and Catharine C. his wife, February 17th 1871, and was upon four lots in the city of Baxter Springs, and eighty acres of land then held by said Madden under the preemption act. The district court, at the June Term 1873, held said mortgage invalid as to the eighty acres, and gave judgment accordingly. Brewster brings the ease here. Judgment for the amount of said note was rendered by the court, and the mortgage foreclosed…
1Opinion of the Court
The opinion of the court was delivered by
Brewer, J.:
Is a mortgage given by a preemptor prior to the entry of the lands, void? and if so, are his heirs estopped from setting up its invalidity in an action to foreclose the mortgage? These'are the only questions presented in this case. The mortgage was on the lands entered, and on four town lots. It was given long before the entry, and to secure simply the purchase-price of the four lots. Intermediate the mortgage, and the entry, the mortgagor died, and the entry was made by the widow, in the name and for the benefit of the minor heirs. Sec. 13…
2Cases cited3 opinions
- Warren v. Van BruntSupreme Court of the United States · 1874
- McCue v. SmithSupreme Court of Minnesota · 1864
- Watterson v. KirkwoodSupreme Court of Kansas · 1871
3Cited by20 opinions
- Weber v. LaidlerWashington Supreme Court · 1901
- Mellison v. AllenSupreme Court of Kansas · 1883
- Stark v. MorganSupreme Court of Kansas · 1906
- Brake v. BallouSupreme Court of Kansas · 1877
- Shorman v. EakinSupreme Court of Arkansas · 1886
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