24 Kan. 784 | Kan. | 1881
The facts in this ease are these: -Plaintiff in error commenced an action of attachment against the husband of defendant in error, attached certain lands, obtained service by publication, took judgment by default, and purchased upon sheriff’s sale the lands attached. Before the sheriff’s deed had been executed, defendant in error commenced this action to restrain the execution of the deed, and to have her title to said lands adjudged good. At the time of the commencement of these attachment proceedings, the record ■ title was in the husband of defendant in error, and ■defendant in the attachment proceedings. Both Mr. and Mrs. Farris were non-residents. Her claim was, that the lands were' really and equitably hers, and that by mistake the record title had been passed to her husband.
Upon the record, three questions may be said to arise: First, were these lands equitably in fact the property of Mrs. Farris? Second, what effect did the residence of Mr. and Mrs. Farris have upon the ownership and title? And, third, if Mrs. Farris was the real owner, was she entitled to the relief sought?
Upon the first question there is no. room for doubt. The lands were purchased from the A. T. & S. F. Rld. Co. At first, only certificates of purchase were issued, and issued in blank. These became the property of Mrs. Farris long before her marriage. The subsequent payments of purchase-money were out of her separate funds, and only one of them, and that the last made, through the hands of her husband. Equitably, the lands were hers, because her property paid for them.
Second: Mr. and Mrs. Farris at the time of their marriage were residents of Missouri, and it is claimed that the common law prevails in that state, and that as the land certificates passed into his hands after marriage, and also the moneys for the last payment, that these became his absolute property, and therefore the land itself acquired thereby be
Finally: The right to this relief is clear. The record title was not passed into the name of her husband with her knowledge or consent. The debt sued on was not created on the faith of his ownership. There are no equitable reasons why her title to the property should not be protected. And to permit a sheriff’s deed to go out based upon the record and apparent title would cloud her title, even if it were not the means of passing to some innocent purchaser a perfect title. Hence there are just grounds for the interposition of a court of equity to protect her rights.
We havé considered this case as though the record were properly before us, and upon that record it must be adjudged that the ruling of the district court was correct, and it will be affirmed.