99 P. 270 | Kan. | 1908
The opinion of the court was delivered by
On January 27, 1899, William Calhoun deeded a tract of land owned by him in Kingman county, where he then resided, to seven of his eight children, "taking from them a note and mortgage on the property for $5000. His wife joined in the deed, and a mortgage for $2500 was also taken payable to her, but this was properly released and cuts no figure in the litigation. Humphrey Calhoun, one of the children, ac
Humphrey Calhoun then filed in the probate court an application asking that- the administratrix be directed. to discharge the mortgage, for the reason that at the time of its execution the mortgagee had agreed that on his death it should be released and that payment should not be required of the mortgagors. On. October 26, 1901, a hearing was had on this application, and the court made an order reciting that Mrs. Calhoun was present and consented thereto and directing her to release such mortgage as administratrix. She at once executed a release in that capacity, and it. was made of record in the office of the register of deeds.
On December 15, 1902, Ed Anderson bought the land from Humphrey Calhoun, relying upon these proceedings, and receiving a warranty deed purporting to convey a clear title. On April 22, 1904, L. F. Walter was appointed administrator of the estate of William Calhoun by the probate court of Sedgwick county. On May 11, 1904, he brought an action to foreclose the mortgage.
The district court held that all the proceedings in the
The jurisdiction for the appointment of an administrator of an inhabitant of Kansas is in the probate court of the county of which he is an inhabitant or resident at the time of his death. (Gen. Stat. 1901, § 2806; Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, 93 Am. St. Rep. 299.) And since the record of the appointment of Mrs. Calhoun showed affirmatively that her husband died an inhabitant and resident of Sedgwick county all the proceedings in the probate court of Kingman county were void upon their face, and of no force even when assailed collaterally. (See note on effect of non-residence of decedent in 81 Am. St. Rep. 548.) Therefore the decision of the trial court must be affirmed so far as it authorized the administrator to enforce the mortgage for the benefit of any creditors of the estate.and of any heirs who had not forfeited their right to share in the proceeds. The child of William Calhoun who had signed no deed to the property had done nothing to impair his standing as a beneficiary, and was therefore entitled to protection. The
Mrs. Calhoun interposes a preliminary objection to this' inquiry on the ground that the defense of equitable estoppel was not pleaded against her. Anderson did not in terms plead that she was estopped by her conduct to deny the validity of the release which she had executed as administratrix; but in asserting that the release was effective he set out in his answer all the attendant circumstances. The facts upon which the claim of estoppel is founded therefore appeared in the pleading, and the rule that a defense of that nature must be specially pleaded was substantially complied with.
It might be argued that in taking the position that the proceedings of the probate court of Kingman county were absolutely void Mrs. Calhoun puts herself in the attitude of having voluntarily entered a statement on the public record that the mortgage was no longer in force, and that such voluntary declaration, not having been made as administratrix, is binding upon her personally. But it must be assumed that she acted in good faith and under the belief that she was required to do what she did, and therefore the situation is not entirely the same as though she had acted of her own motion and for her own purposes. However, the transaction amounted to something more than a naked entry of a release of a mortgage by an unauthorized person. What was done in the probate court, although utterly void as a judicial proceeding, and concluding no one as an adjudication, nevertheless exhibited the theory upon which the entry of release was made. This theory was that there had been an understanding between the parties to this family affair that the death of William Calhoun should terminate all. liability under the mort
“Where a person with actual or constructive knowl- • edge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and that other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other’s prejudice.”
If instead of going into court Humphrey Calhoun, the owner of the land, had asked his mother to effectuate the purposes of William Calhoun by entering satisfaction of the mortgage as his widow, and she had consented, while a release so executed could not have validity as such no one can doubt that it would be binding upon Mrs. Calhoun. That the aid of the court was invoked to carry out what was already agreed to by the parties concerned, and that the formal entry of release was made in pursuance of a void order, does not greatly change the aspect of affairs. We conclude that Mrs;