259 P. 791 | Kan. | 1927
The opinion of the court was delivered by
The action was one to subject the proceeds of the sale of certain real property to payment of a judgment in federal court. The controversy involves validity of an assignment of such judgment to plaintiff. The plaintiff prevailed and defendants appeal.
The facts are substantially these: M. B. Altenburg and F. J. Oyler were sued jointly in federal district court at Fort Scott by Elliott Blackwelder and others, in July, 1923. In May, 1924, Alten
The defendants contend that the action by Oyler, one of the joint-defendant debtors in procuring the loan, having the judgment transferred, etc., operated as a satisfaction and extinguishment of the judgment as to both defendants, leaving nothing to assign; also, that
Plaintiff contends that the judgment was assigned for collateral security; that it was not intended to be and was not a satisfaction of the judgment.
The controlling question, in our opinion, is whether it was the intention of the parties at the time of execution of the assignment of the judgment that it should operate only as an assignment or in satisfaction thereof; also, whether it was equitable to subject the proceeds of the land in question to payment of the judgment. The intention of the parties, the result of their action in making the loan, and whether there was an assignment of the judgment or a release thereof, were •principally questions of fact. The plaintiff alleged assignment of the judgment for a valuable consideration. Copy of the assignment was attached to his petition and made a part thereof. Defendants denied there was an assignment and alleged satisfaction of the judgment. Plaintiff in a reply denied allegations of defendant’s answer. The evidence showed assignment of the judgment and no intention to satisfy. The court found the issue, as all others, in favor of the plaintiff. There appears no good reason to disturb the finding. It may be said that Oyler was only a judgment debtor the same as Altenburg. If Oyler had sufficient property and paid the whole of the judgment, he would be in the same position as if he were a surety and judgment rendered against him as surety. A surety who pays a judgment against his principal is ordinarily entitled to be substituted to the rights of the creditor. In Crippin v. Chappel, 35 Kan. 495, 11 Pac. 453, and Yaple v. Stephens, 36 Kan. 680, syl. ¶ 1, 14 Pac. 222, the rule was stated that “generally where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor, or in the place of the creditor, such person will be so substituted.” (See, also, Harris v. Frank, 29 Kan. 144; Honce v. Schram, 73 Kan. 368, 85 Pac. 535, 15 R. C. L. 778, 780; Bank v. Opera House Co., 23 Mont. 33, 75 Am. St. Rep. 499.) Nor does there appear any equitable reason why the proceeds of this property fraudulently conveyed by Altenburg should not be applied in satisfaction of his liability. The property in question passed to Coblentz and wife November 1, 1924. Judgment in the federal court was not rendered until May 25, 1925.
The petition in the present action alleged “that the estate of said
Various other objections to the judgment have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed.