84 P. 381 | Kan. | 1906
Lead Opinion
The opinion, of the court was delivered by
Basile Hanrion died intestate leaving a widow, Harriet F. Hanrion, and four sons. There was some disagreement among the heirs as to the proper distribution of the estate, but they all finally entered into a written contract adjusting the matter. One of the sons, however, Louis B. Hanrion, became dissatisfied and brought a suit against the widow and the other heirs to have the settlement set aside as having been wrongfully procured, and to have the property dis
Various assignments of' error have been made and argued, but, except for one matter which will be specially noted, «they all come under one general head— that the findings of the referee are not supported by the evidence. The record is voluminous, comprising 1370 pages. To review the evidence in detail would serve no' useful purpose. Upon this branch of the case it is enough to say that the judgment could not be reversed without invading the province of the referee and reviewing his conclusions upon the credibility of the witnesses, the weight of their testimony, and the inferences to be drawn from the facts established.
The one contention of the cross-petitioner in error that involves the determination of a debatable proposition of law dissociated from any question of fact is based upon the circumstance that the property which the trial court held to be assets of the estate included a number of real-estate mortgages in which Louis B. Hanrion was named as mortgagee, although they were
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.” (Gen. Stat. 1901, §7880.)
It is obvious from the context, if not from the language quoted, that the section is intended to apply only to transactions concerning real property, and not to transfers of personalty. (Baker v. Terrell et al., 8 Minn. 195.) In the case of Robbins v. Robbins, 89 N. Y. 251, the question whether such a statute had application to the execution of a real-estate mortgage to one person where the consideration was paid by another was involved, discussed, and decided, although the result reached was also justified upon other grounds. The view of the court upon this matter is indicated by the conclusion of the first paragraph of the syllabus:
“Held, thát the provision of the statute of uses and trusts . . . declaring that where a grant is made to one person, the consideration being paid by another, no use or trust shall result in favor of the latter, but title shall vest in the former, had no application; that plaintiff, by operation of law, took the bond and mortgage as trustee for defendant, and those securities being personal property the statute had no application.”
In the opinion it was said:
“Although the bond and mortgage, in form, ran to the plaintiff, he took as trustee for the defendant, by implication of law, if not by agreement. Those securities were personal property only and had no relation to the statute.” (Page 258.)
In the case of Meier v. Bell, 119 Wis. 482, 97 N. W. 186, cited in 2 Current Law, 1933, note 4, the supreme court of Wisconsin held that under this statute where one takes a note and mortgage in the name of another the title vests in the person named as mortgagee, but the decision is made without discussion, upon the authority of three earlier cases. Two of these relate-wholly to absolute transfers of title. The third has no connection with the subject and is obviously cited by mistake, the case intended being probably the one immediately preceding it in the report, which contains an allusion to the statute but is barren of any reference to a mortgage.
It is true that the words “grant” and “conveyance” are sometimes construed to include a mortgage, even in jurisdictions where, as in Kansas, such an instrument passes no estate in the land. For various reasons that are unassailable, but which are peculiar to each of the several classes of cases, such interpretation has been adopted in the construction of statutes relating to the homestead right, to the alienation of public lands by a settler before acquiring title, to the registration of instruments affecting real estate, and to other-matters. These reasons have no application here. A mortgage is but an incident to the note it secures. It. inures to the benefit of the owner of the debt without formal assignment, and is incapable of assignment as a separate and independent right. It is extinguished by the payment of the indebtedness. The possession.
Rehearing
OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
A part of the judgment rendered by the court of common pleas on the 1st day of February, 1904, was thus expressed: “It is further ordered and adjudged that the plaintiff, L. B. Hanrion, do have and recover of and from the defendant Harriet F. Hanrion, and Harriet F. Hanrion as administratrix of the estate of Basile Hanrion, deceased, the sum of $615.50, with interest from March 28, 1899, at the rate of six per cent, per annum, and hereof let execution issue.” In the brief of the cross-petitioner in error, Louis B. Hanrion, a criticism was incidentally offered of the form of this judgment, and in a petition for a rehearing complaint is made that this court failed to take notice of the matter. Obviously the entry should have shown a judgment in terms for the sum of the principal and interest — that is, for $794. It does so in effect, and is good against any attack the cross-
As the plaintiff in error instituted the proceedings in this court it is hardly just that she should be relieved from the payment of all costs here, although she afterward concluded not to prosecute the assignments of error made on her part. These costs will therefore be divided equally between her and the cross-petitioner in error. The petition for a rehearing is denied.