Burditt v. Burditt

64 P. 77 | Kan. | 1901

The opinion of the court was delivered by

Pollock, J.:

The undisputed evidence adduced upon the trial below clearly shows that defendant A. L. Burditt furnished the money with which entry of this property was made by John C. Adams from the government, and in addition thereto paid said Adams fifty dollars for a conveyance of the property ; and, further, that he made the improvements, paid the taxes and furnished the money set forth in his answer to his brother, A. K. Burditt, and that no part of the same has at any time been paid to the defendant: It further appears from the evidence that the deed from John O. Adams to defendant A. L. Burditt was intended to be, and between the parties thereto is what it imports, an absolute conveyance ; that all these years A. K. Burditt, an old and infirm soldier, and his family, lived upon the property, using the same as a home, cultivating the land, free of charge ; that it was understood and agreed between defendant and his less fortunate brother, A. K. Burditt, that at any time the latter would pay the amount of money which defendant had expended in the purchase, preservation and improvement of this property and advancements made to him, the defendant would make conveyance to him. Not only do these facts clearly appear from the record, but it further appears that all the parties thereto fully knew and understood the condition of affairs with respect to this property.

What, then, are the rights of the respective parties to this property ? The court and counsel for plaintiffs below have proceeded upon the assumption that the deed from John C. Adams to defendant below is, in law, a mortgage held by defendant to secure the repayment of the money expended in the purchase and improvement of this property; that, because of the facts as alleged, the collection of this debt by defendant A. L. Burditt is barred by lapse of time, and the plaintiffs below are entitled to a judgment quieting the title in themselves. To this view of this case we do not yield our assent. It is not warranted by the record, and the position assumed is unsound in law. The statute of limitations has no place in this case. It is a statute of defense, not a weapon of attack, and cannot be invoked to uphold or maintain a claim for affirmative relief. (Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844.)

Again, the title to this property rests in the defendant below. It was placed there by John C. Adams, who had the right to convey, not by A. K. Burditt. Whatever rights A. K. Burditt or his heirs possess in this property arise not from the nature of the deed from John C. Adams to defendant, but from the agreement of defendant to convey to A. K. Burditt upon a performance of the conditions imposed. It is clear that if this deed in fact is, as between defendant and A. K. Burditt or his heirs, a mortgage, it must, by force of necessity, constitute a mortgage as between John C. Adams and defendant, and, being in fact but a mortgage, the legal title to the property rests in Adams, not in defendant below. Hence, its cancelation by payment of the debt would leave the title to the property not in A. K. Burditt or his heirs but in Adams — a proposition controverted positively by both the defendant below and Adams, and a consummation not desired and which would not benefit plaintiffs below. It has been frequently ruled that where the deed is to one party and the defeasance is to a third person, the transaction cannot be a mortgage, and that a deed without a defeasance, either oral or written, cannot be a mortgage. (Treat v. Strickland, 23 Me. 234; Low v. Henry, 9 Cal. 538; Lance’s Appeal, 112 Pa. St. 436, 4 Atl. 375; Tiede. Real Prop. § 303.)

The title to the property in controversy being in defendant below and being held by him subject only to the condition that he would convey to his brother, A. K. Burditt, upon payment of the money he had paid in the purchase, preservation and improvement of the property and the money advanced to his brother, it 'was not incumbent upon defendant to resort to an ' action in the courts to protect his interests in the property. The conveyance of the property to him is his protection. Therefore, having no right of action to recover that which he already has, the statute of limitations can have no application in such case. Plaintiffs below, if so advised, can pay the defendant and take from him a conveyance of the property. ' If a controvery shall arise as to the amount to be paid, the same can be ascertained by an accounting had and a decree for conveyance upon payment. This view of the case seems more in harmony with equity and justice between the parties than the view taken by the trial court. Indeed, it would seem to be a reproach upon our laws if plaintiffs below, after receiving the timely assistance of the defendant during their many years of adversity, should now be permitted successfully to maintain that their benefactor is entitled to receive back neither the money paid nor the. property purchased. Such, in our view, are not the equities of this case.

The judgment of the district court is therefore reversed.