27 Kan. 242 | Kan. | 1882
The opinion of the court was delivered by
This action was brought in the district court of Marion county, by W. B. Law against James English, for the recovery of money due on a promissory note. Certain land in said county was attached as the property of the defendant. Immediately thereafter Lide J. English, the wife-of the defendant, filed a pleading in the case, under- chapter 137 of the Laws of 1877, (Comp. Laws 1879, p. 6Ó6,) setting forth that, although the legal title to the land was, at the time it was attached, in her husband, James English, yet the entire equitable title and interest were in her, and that her husband was a mere trustee for her of the legal title. This claim was
The district court decided in favor of the plaintiff, Law,
Judicial process (in the absence of a sale under it to an innocent and bona fide purchaser) will not attach to a bare, naked legal title, so as to affect the interests or rights of the person holding the equitable title.
Our decision in this case is in favor of the claimant, Lide J. English; but the decision is made upon the theory that the testimony of the claimant and her husband is true. Therefore, when the case goes back to the district court for another trial, as it must, if the testimony of the claimant and her husband should be found not to be true, or if their testimony should be greatly discredited, a different decision might be required in the case; but if upon the new trial the facts shall appear substantially as they appear in this case, then judgment should be rendered in favor of the claimant, and against the plaintiff, Law.
The judgment of the court below will be reversed, and the cause remanded for a new trial.