80 P.2d 1050 | Kan. | 1938
The opinion of the court was delivered by
This was an action by a father and mother to recover from their son and his wife an annuity of $150 for the five years preceding the filing of the action and to have a judgment for the same and all future annuities made a lien upon the McDonald land now owned by both defendants. The case involves questions as to the extent of liability of the son under a written agreement, the statute of limitations, the statute of frauds, the defense of homestead rights and the application of a judgment lien.
The case was tried by the. court. Findings of fact and conclusions of law were made, and judgment was rendered in favor of plaintiffs and against the son for $750, with interest from the date of filing the action, and $300, with interest, from date of judgment, and the total judgment was made a lien on the McDonald land. The annuity of $150 was decreed by the court to be an obligation of the son during the life of the survivor of the parents. After the motion for a new trial was overruled the defendants appealed, raising the questions above indicated, and also the sufficiency of the evidence to support the findings of the trial court, and especially the finding and judgment making the judgment a lien upon the McDonald land.
Plaintiffs also have filed a cross-appeal raising two points in particular: First, the failure of the trial court to make a finding as to the joint consent of the defendant, Mary Kalivoda, to the transfer of plaintiffs’ lien to the McDonald land, which the plaintiffs claim was established by the evidence. We will defer consideration on this first point in the cross-appeal until we reach the points raised by the appeal concerning the evidence and the findings of fact. The second point raised by the cross-appeal is that the appellants did not file their motion for a new trial within the three-day limit required by statute after the court had made its decision, so that there would be nothing that could come up on their appeal except the question as to the sufficiency of the findings and conclusions to support the decree. (Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786, and Benson v. Rosebaugh, 128 Kan. 357, 278 Pac. 41.)
Some of the undisputed facts out of which this controversy later grew are as follows: The plaintiffs herein, father and mother of the defendant Stephen, in December, 1915, conveyed to him 120 acres of land in Republic county for the consideration of one dollar and love
“It is therefore agreed by and between the parties to this agreement that said real estate first described herein (the 120 acres) be released fully and completely from any and all claims by said parties of the first part for the payment of said annual amount of 55150, and that said agreement as to the payment of said annual sum as provided in said deed herein described be continued in full force and effect, but to become a lien upon the property last described (the farm bought from Lahodney)
Stephen and his wife moved on the Lahodney land about the time they purchased it, and made it their homestead until March 1, 1927. In the fall of 1926 the defendants contracted to sell the Lahodney farm for $16,000 and to purchase the McDonald farm for $22,000. The court found that it was orally agreed by the father and son that the lien should be transferred to the McDonald farm. There was sufficient evidence, if believed,, to support this finding, and there was evidence to the contrary. A release of the lien on the Lahodney farm was signed by the plaintiffs and they say they also signed the agreement to transfer the lien to the McDonald farm, but it was never signed by the son nor his wife. The son and his wife moved from the Lahodney farm to the McDonald farm about March 1, 1927. It was conveyed to both of them and it has been their homestead ever since. Payments of the $150 annuity were made from time to time until about 1927, when the son’s wife refused to make further payments. Sometimes the amount paid was less than $150 if the father asked for only a lesser amount. The
The court in its conclusions of law held that the agreement of November 20, 1917, signed by both plaintiffs and by the son, sufficiently reduced to writing the understanding of the parties in reference to the payment of $150 annuity during the lifetimes of the plaintiffs, or the survivor, to fully comply with the statute of frauds. Further, that the contract to pay the $150 is a continuing contract, and recovery may be had for each annuity within five years after the year in which said annuity is due, and that plaintiffs are now entitled to the sum of $1,050, with interest on $750 thereof at six percent from May 20, 1936. The third, fourth, fifth and sixth conclusions of law concern the question of such judgment becoming a lien on the McDonald land. They are as follows:
“No. 3. The original conveyance from John Kalivoda to Stephen Kalivoda being without consideration except for the agreement to pay the $150 yearly, and the sale of that land enabling Stephen Kalivoda to pay for the Lahodney land, and the sale of the Lahodney land in turn enabling Stephen Kalivoda to buy the McDonald land, requires in equity that the court decree a lien on the interest of Stephen Kalivoda at least in the McDonald land to secure the payment of this annuity, or the $150 payment, whatever it may be called.
“No. 4. The right of John and Antonie Kalivoda to the annual payment of $150 is superior to the defendants’ claim of homestead in the McDonald land.
“No. 5. Neither the statute of frauds nor the statute of limitation bars the plaintiffs’ right to recover annuities due within five years, nor the right to have a lien established against the McDonald farm.
“No. 6. The court finds that it is equitable that an order to sell the McDonald farm should not issue at this time, but that jurisdiction should be retained to enforce the same in the nature of a trust in the land, and the right to appoint a receiver to assume charge of the real estate and do the necessary things to secure payment of the $150 annual payments is reserved.”
Judgment was rendered on November 17, 1937, in favor of the plaintiffs and against the son Stephen, in accordance with the above-described findings and conclusions.
As to the action being barred by the statute of limitations and the contract being in disregard of the statute of frauds, the pleadings and the evidence unmistakably show the action against the son covered only a period of five years prior to the filing of the action,
The question receiving the most serious attention in this case is whether the plaintiffs have a right to a judgment lien on the McDonald land, the application of the homestead exemption privileges and the matter of joint consent of the son’s wife to the transfer of the annuity lien to the McDonald land. The conclusions of law above quoted make the judgment a lien on this land, although there is no writing signed by the son to that effect, and although the ownership of the land is in the name'of the son and his wife and it is occupied by them as a homestead. The theory of the plaintiffs is sound and reasonable in their insistent request for a finding that joint consent should have been made from the evidence, if it was not shown to have been in writing. But the court made no such finding, even after its.attention had been specifically called to.the testimony claiming to have established it. A careful review of the evidence on this subject is not convincing that the court erred in failing to make such a finding. Answers were made to several questions along this line before a ruling of the court was entered sustaining an objection to the question asked, and there was a conflict in the evidence as to such joint consent. Without such joint consent and with the undisputed fact as to the wife’s owning the land jointly with her husband we think the right of homestead enters into the feature of even making the judgment a lien on the son’s interest in the land. It is suggested that the proceeds of the 120-acre tract, being a gift from the parents, have been traced into the purchase fund of the McDonald place, but without any writing to that effect or a showing that it was borrowed money “for the payment of obligations contracted for the purchase of said premises,” as provided by the constitution (art. 15, § 9), there is a homestead exemption if there is no joint consent of husband and wife established.
Appellees cite Foster v. Bank, 71 Kan. 158, 80 Pac. 49, and other authorities on this question which make, as above quoted from the constitution, obligations contracted for the purchase of the property a proper exception from the requirement of joint consent.
The judgment is affirmed in every respect except as to the lien on the McDonald land, and the cause is remanded with directions to eliminate the lien on that land.