| Kan. Ct. App. | Jul 16, 1895
The opinion of the court was delivered by
This was a suit on a note and mortgage, brought by D. F. Coon, assignee of W. T. Frankenberger, on one certain promissory note executed by John W. Shaw and his wife, Leonica T. Shaw, dated November 8, 1883, to W. T. Frankenberger, for the sum of $65, due in March, 1886, with 10 per cent, interest from date. To secure the payment of this note and another note of $70, due March 1, 1885, Shaw and his wife executed a mortgage on a certain tract of land then owned by them, situated in Bourbon county, Kansas. The mortgage was duly executed and recorded in the proper office. Before this note became due, Frankenberger sold and indorsed it to D. F. Coon. A copy of this note is attached to the petition of the plaintiff, D. F. Coon, with certain payments indorsed thereon. Plaintiff prays for a judgment against John W. Shaw, Leonica
Irvin, in his answer and cross-petition, alleged that D. F. Coon, John. W. Shaw, Leonica T. Shaw, Martha Fuller, Rosetta Shields, Dora Riley, Alfred McNair (minor), George McNair (minor), Mary McNair (minor), each claims to have some interest in said lands, but he alleged that whatever interest they have therein is inferior and subordinate to the lien of Irvin & Lewis, for purchase-money and mortgage lien, and prayed for judgment against Cynthia Brice and Hpston Brice for the amount due on said notes, with interest, and for a decree of foreclosure of said mortgage, forever barring all of the defendants. Lewis after-
On March 26, 1886, Cynthia McNair (now Cynthia Brice) sold her interest in the land described in the petition of plaintiff (Coon) to these defendants, and they took possession of the same in pursuance of said sale, and they have ever since had and now have exclusive, peaceable possession of said real estate and are the owners thereof. Cynthia McNair has since said sale intermarried with one Huston Brice. A part of the consideration of the purchase of said land was the payment by these defendants of the first note described and copied in the mortgage set out as an exhibit to plaintiff’s petition. Defendant Cynthia ( McNair) Brice agreed to pay the other note, that is, the note upon which plaintiff' sues, and was to protect these defendants against said mortgage. Afterward, she and the rest of her family could not keep up the interest on plaintiff’s note, and in order to protect the property, in which these defendants were co-tenants with other defendants above named, these
Cynthia Brice and Huston Brice appeared and filed an answer and cross-petition, in which they admitted the giving of all the notes set out in plaintiff’s petition and in the cross-petition of defendant Irvin, and denied the sale of the land to Puller, and alleged that there was a certain note given by Jack McNair, his wife Cynthia McNair, and Huston Brice to John W. Shaw for the sum of $115, dated May 15, 1884, due two years after date, payable to John W. Shaw, and was given for part of the purchase-money of the mortgaged premises, and so stated in said note ; and said note was sold and indorsed in writing to Irvin & Lewis. They also admitted that at the death of Jack McNair he left surviving him the persons named in the answer and cross-petition of David Fuller as his heirs at law, and averred the facts to be, that shortly after the death of Jack McNair, said David Fuller and
"John W. Shaw owned the land March 14, 1884,*255 and on said day mortgaged it to W. T. Frankenberger ; Frankenberger indorsed the note, before due-, to D. F. Coon. On the 14th day of March, 1884, Shaw sold said land to Jack McNair, who assumed the payment of the mortgage of Frankenberger. Jack McNair also gave his note, signed by himself and Cynthia McNair, with Huston Brice as surety thereon, to Shaw for the sum of $124; the note recited that it was given in part payment of the purchase of said lands ; neither Jack" McNair nor his wife ever lived on the lands. In 1885, Jack McNair died, leaving as his heirs Cynthia McNair (his widow) and six children, one of whom was a daughter, who is one of the defendants, Martha Fuller, wife of David Fuller. In 1886, David Fuller went into possession of said lands as tenant of Cynthia McNair, and commenced to improve the same. Afterward, in the same year, at the request of Cynthia McNair, he paid $72 to the then owner of plaintiff’s mortgage, that being the amount of the first note, and took up the note ; he also paid, in the same manner, $20 on the second note set up in plaintiff’s petition in said mortgage ; shortly thereafter Cynthia McNair sold to David Fuller her one-half interest of said lands; she executed, acknowledged and delivered a deed of- conveyance of the same to David Fuller, but the deed was lost and neyer recorded. Fuller held possession of the farm, claiming ownership under said purchase, ever since. On April 5, 1887, defendant Irvin, who had bought before maturity the $124 note given by McNair [to show for the purchase of said land which was then past due,] surrendered the note to Mrs. McNair, who, in the meantime, had married defendant Huston Brice, and took the note and mortgage set up in his answer and cross-petition, Irvin having full knowledge of plaintiff’s mortgage. Irvin’s mortgage recited that it was given for the purchase-price of real estate.”
As conclusions of the law the court found as follows
“1. That plaintiff D. F. Coon should have a first lien on the farm for the amount due on his note, to wit,*256 $83, with. 10 per cent, interest from date of Ms judgment.
‘ ‘ 2. That defendant Irvin should have a second lien on all of said real estate for the amount of his note, said Irvin having acquired his rights by virtue of the mortgage set up in his answer.
“3. Defendant Fuller.is entitled to any balance that remains over after the above liens are satisfied.
“4. Defendant Irvin when he took his mortgage was not bound to take notice of the character or basis of defendant Fuller’s possession, because Irvin knew that Martha Fuller, wife, was daughter of Jack McNair, deceased, and hence had a right to presume that Fuller held as heir for the other heirs as well. Defendant Fuller is not entitled to be subrogated to any rights under plaintiff’s mortgage, nor entitled to anything until after defendant Irvin’s claim is fully satisfied.”
To every finding of fact and conclusion of law, and to the judgment, defendant David Fuller duly excepted. Thereafter, on the 5th day of January, 1891, David Fuller filed his motion to modify said judgment and decree so that his rights in the land involved be declared prior and paramount to that of defendant Irvin; that the decree as it stands is contrary to the findings of fact, and is not supported by them, and is contrary to law. This motion was overruled, to which defendant Fuller excepted, and on January 5, 1891, defendant David Fuller filed his motion that the judgment and decree be set aside, and for a new trial for error occurring on the trial of said cause, and that the judgment should have been for defendant Fuller ; that the judgment is contrary to the evidence and contrary to law. The motion was overruled by the court, and defendant Fuller duly excepted, and 30 days’ time was given to make and serve case for the supreme court.
The principal question in this case is, first, did M.
“The law of vendor’s lien, as administered in England, is not necessarily a part of the law of this state. That being repugnant to the general real-estate jurisprudence of the state as contemplated and established by statute, a recognition of its existence here would savor more of legislative than judicial determination. Hence, it cannot and should not be regarded as a part of the law.”
In the case of Greeno v. Barnard, 18 Kan. 518" court="Kan." date_filed="1877-07-15" href="https://app.midpage.ai/document/greeno-v-barnard-7884426?utm_source=webapp" opinion_id="7884426">18 Kas. 518, Mr. Justice Valentine, delivering the opinion of the court, says :
‘ ‘ He claims the court below erred in finding that plaintiff had a lien for the amount of said notes on defendant’s land, and also erred in rendering judgment for the sale of said land. These are the only questions in the case. We think the court below did so err. There is no such thing in this state as a vendor’s lien created by mere operation of law or by mere force of the rules of equity.”
The supreme court has never held that the vendor of real estate held a lien on the granted premises, unless the parties so agreed and preserved the lien, either in the deed of conveyance or by withliolding
Did M. J. Irvin acquire any lien on the land by reason of the mortgage from Cynthia Brice and Plus-ton Brice, after she had conveyed all her interest to David Fuller and Fuller was in the open and notorious possession thereof, at the time claiming to be the owner? The court below found as a fact that, in 1886, David Fuller went into possession of the land as a tenant of Cynthia McNair, and commenced to improve the same. Afterward, in the same year, at the request of Cyhthia McNair, he paid $72 on the mortgage, being the first note, and also paid $20 on the other note, the one in suit; and, shortly thereafter, Cynthia McNair sold her one-half interest in the land to David Fuller, and executed and delivered to him a deed for the same, but the deed was lost and never placed on record ; and thereafter, on the 5th of April, 1887, M. J. Irvin, who had bought, before maturity, the note of $124 given by McNair and wife, which was then past due, surrendered the note to Mrs. McNair, who had in the meantime married Brice/ and she and Brice executed to IrVin a renewal note, and, to secure the payment of this renewal note, gave Irvin a mortgage on the land. Under these findings of fact the court made conclusions of law as follows :
“2. That defendant Irvin should have a second lien on all of said real estate for the amount of his note, said Irvin having acquired his right by virtue of the mortgage set up in his answer.”
“4. Defendant Irvin, when he took his mortgage, was not bound to take notice of the character of the basis of defendant Fuller’s possession, because Irvin knew that Martha Fuller, wife of David Fuller, was*259 daughter of Jack McNair, deceased, and hence had a right to presume that Puller held as heir and also for the other heirs as well. Defendant Fuller is not entitled to be subrogated to any right under plaintiff’s mortgage, nor entitled to anything until after defendant Irvin’s claim is fully paid.”
In these conclusions of law the court committed error. Under the findings of fact, defendant Irvin had no lien of any kind whatever on the land. There is not any such thing as a vendor’s lien under our law; the giving of the note by Jack McNair and his wife to Shaw for the purchase of the land created no lien thereon. Hence the assignment of the note by Shaw to Irvin gave him no lien on the land. Having no lien by virtue of being th#e assignee of Shaw, then did he obtain a lien upon the renewal of this note and taking the mortgage from Cynthia Brice and Huston Brice? The findings of fact are, that David Fuller took possession of this land in 1886 and commenced to improve the same, paid the first note due under the mortgage to Frankenberger of $72, and also paid $20 on the note in suit, and was all this time in possession of the land, claiming to be the owner thereof. Some time in 1886 Cynthia McNair sold her one-half interest in the land to David Puller, and made him a deed for the same, which deed was lost and never entered of record. After Cynthia McNair sold and conveyed her one-half interest in the land to David Puller, she was married to Huston Brice, and thereafter, on the-5th day of April, 1887, she and Huston Brice executed a mortgage to Irvin to secure the renewal note. We think that Irvin had not obtained any lien upon the-land at all. He knew that the land belonged to Jack McNair at the time of his death, and knew that. Jack McNair left surviving him a widow and six children, and knew that David Fuller was in posses
This cause is remanded to the district court of Bourbon county, with direction so to modify the decree of the court as to conform to the opinions herein, and the defendant Irvin is to pay the costs of this court.