8 Kan. App. 175 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
This action was brought by Richard Gerety against Bridget Donahue, Louisa Talliaferro and James M. Honey to have determined the interest of Bridget Donahue in the southeast quarter of section 15, township 6, range 19, and the northeast quarter of the southwest quarter of section 15, township 6, range 19, in Atchison county, and for the sale of such interest in satisfaction of. a judgment which Gerety had previously recovered against Donahue in the sum of $645.84, with interest and costs of suit.
The defendants Donahue and Talliaferro filed an answer, in substance : (1) A general denial; ( 2 ) admitting the ownership of the lands ; • ( 8 ) allegations that by the will of the former owner, Thomas Donahue, since deceased, the lands were devised to Talliaferro, nee Donahue, in fee, subject to a life estate of Donahue and Talliaferro jointly; that the farm was the homestead of Donahue ; that the estate of Donahue, deceased, was involved in liabilities, for the payment of which the lands were rented, and that plaintiff was not entitled to maintain his action for the reason that he had an adequate remedy at law. The reply was a general denial. The defendant Honey made default.
A trial was had by the court without a jury, and the court made special findings of fact and conclu
There are but two questions presented by the record for determination, both of which must be answered in'the affirmative. Does the petition state a cause of action? This action' was brought under section 501 of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4579), which reads :
‘‘When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he may have in real estate as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge or other joint-stock com: pany, or any interest he may have in any money, contracts, claims or choses in action, due orto become due to him, or in any judgment or decree, or any money, goods or effects which he may have in the possession of any person, body politic or corporate, shall be subject to the payment of such judgment by action, or as hereinafter prescribed.”
The plaintiff Gerety for his cause of action alleged that on the 14th day of October, 1893, by the consideration of the'district court of Atchison county, he recovered a judgment against the defendant Bridget Donahue in the sum of $6,45.84, and costs of suit; that an execution was issued, and returned unsatisfied for want of goods, property, lands or tenements of Donahue out of which the same could be collected; that defendants Donahue and Talliaferro were joint owners of a life estate in the lands with the remainder over to Talliaferro ; that the real estate is a valuable farm,
The petition shows the defendant Donahue to be a judgment debtor who has no pex-sonal or real property on which an execution can be levied sufficient to satisfy the plaintiff’s judgment, and that she has an equitable interest iix the lands described, and in the rents and profits arising therefrom in the hands of Talliafex'ro. The petition states facts sufficient to bring the parties within the provisions of the statute, and therefore states a cause of action.
Secoxxd. Did the trial court render the proper judgxxxent on the findings of fact. The fixxdings are, in substance, as follows :
Thomas Donahue and Bridget, his wife, who is oxxe of the defendants herein, for years prior to December .17, 1887, owned and occupied as their home the southeast quarter of section 15, township G, range 19, together with the northeast quarter of the southwest quarter of section 15-, township 6, range 19, in Atchison coxxnty, which forty-acre tract adjoins the homestead, the whole forming a body of 200 acx'es. The family consisted of himself, his wife Bridget, and a daughter Louisa. Thomas Donahue died December
The trial court properly rendered judgment on the findings of fact for the defendants. The interest of Donahue in the property was undetermined, contingent, and remote, and the plaintiff could take nothing by reason of his suit on the findings.
The judgment must be affirmed.