Hofman v. Demple

52 Kan. 756 | Kan. | 1894

The opinion of the court was delivered by

AlleN, J.:

It is contended that the court erred in subro-gating the defendant to the rights of the former holder of the mortgage on the plaintiff’s homestead. Counsel for the plaintiff in error urges that this is an action simply to obtain a decree declaring plaintiff’s signature to the deed void; that it is void without any such decree; that the only purpose of prosecuting this action is to make a public record of the fact, and thereby prevent a transfer to an innocent party without notice; that the defendant, having procured the deed by fraud and duress, cannot acquire any rights through the transaction, and that his payment of the mortgage was voluntary on his part and that he can found no claim thereon against the plaintiff.

The authorities cited by counsel for the plaintiff in error merely reaffirm the well-established doctrine that a party cannot resort to a fraudulent, illegal or immoral transaction as the foundation of a cause of action in a court of justice; that in all such transactions the court leaves the guilty party where it finds him. In this case, whether we recognize the nice distinction drawn by counsel for plaintiff in error or not, the action is equitable in its nature. The plaintiff seeks relief from an act which she claims she was compelled to do by duress. It appears that the deed sought to be canceled was executed on the 20th day of May, 1886, and, so far as appears from the record brought to this court, its validity remained unquestioned until about the time this action was ■commenced, which was on the 12th day of March, 1888. The testimony taken before the jury is not before us. All presumptions are therefore in favor of the findings and conclusions of the court. We must presume that the mortgage which is conceded to have been a valid lien at the time of the execution of the deed, and then due, was paid by Demple after the execution of the deed, and before any steps were taken to question its validity. Would it be equitable to hold that the plaintiff might remain quiet, apparently ratifying the conveyance made, thereby induce the defendant to pay off and discharge the liens existing on the property, and then, after a delay of more than a year and a half, come into court and recover, not merely that which had been conveyed away, but something far better — the same homestead, freed and cleared of the liens which were thereon at the time she parted with it? We think this would be palpably wrong, and that the trial court took the correct view of the case.

The judgment is therefore affirmed.

All the Justices concurring.