97 Kan. 22 | Kan. | 1916
The opinion of the court was delivered by
The Harrison National Bank, having a judgment against J. F. Leslie, levied an execution upon the undivided one-fourth interest in two tracts of land, and was about to sell it as his property, when his son, Frank Leslie, brought an action to enjoin the sale on the ground that he was the owner of the interest sought to be sold. Upon a trial relief was denied, and an appeal was taken from the decision refusing the injunction.
On June 18, 1878, Alexander Leslie (father of the judgment debtor and grandfather of the plaintiff in the injunction action) made a will which, without describing any specific property, gave a life interest in alíthe estate, both real and personal, of which he should die seized, to his wife, with a remainder in equal shares to their four sons, one of whom was J. F. Leslie. At the time of making the will both tracts referred to were government land, occupied by the testator with a view to acquiring title under the preemption and timber-culture acts. He died July 2, 1878. The widow elected to take
On August 2,1904, J. F. Leslie (his wife joining) executed to his son Frank Leslie, for a recited consideration of one dollar and love and affection, a general warranty deed, in which the property conveyed was thus described: “Our undivided one-fourth interest in and to the East one-half of section thirty (30), in township twenty-two (22), South of range nine (9) West of the 6th P. M. Being the interest arising under the will of Alexander Leslie deceased the father of John F. Leslie.” The warranty clause contained an exception as to the life interest of Elizabeth Leslie. The bank sued J. F. Leslie July 21, 1901. Its judgment was rendered September 16, 1904. Elizabeth Leslie died May 17, 1913, leaving all her property in equal shares to the four sons already referred to. The execution levied upon the real estate in question was issued October 20, 1913.
(1) Frank Leslie maintains that his grandmother, having acquiesced in and received the benefits of the arrangement by which she was treated as owning a life estate, was estopped to assert any other title; and therefore that his father should be regarded as having owned a one-fourth interest in the land when he executed the deed. No doubt the heirs of Alexander Leslie could have made any agreement they saw fit as to the disposition of the property, and even although not in writing it would have been enforced if it had been so far acted upon as to take it out of the statute of frauds. (McCullough v. Finley,
(2) The bank contends that the deed executed by J. F. Leslie purported to convey only the interest arising under the will, and therefore that it conveyed nothing at all, since no title whatever was derived from that source. Considering the language of the deed in connection with the undisputed facts, it is clear that the grantor intended to convey all the interest he had in the property. He supposed it to be an undivided one-fourth, subject to a life estate in his mother, when in fact it was a present right to an undivided one-eighth; he supposed that he derived what title he had from the will, when in fact he derived it from the government by operation of law. He was mistaken as to the extent and as to the exact source of his title, but knew in a general way that an interest in the land came to him through the death of his father. Since he obviously intended to dispose of all the interest he had, and since he employed words sufficient to convey even more, the deed should be interpreted as conveying that much. (13 Cyc. 656, 657; 8 C. J. 1060.)
(3) Upon the death of his mother (May 17, 1913) J. F. Leslie acquired from her an additional eighth interest in the property. As he had already executed a warranty deed to his son for a quarter interest, this, newly acquired title doubtless inured to the benefit of the grantee. (Gen. Stat. 1909, § 1656.) But in the meantime the bank had obtained a judgment against him, the lien of which attached to his interest in the land as soon as he received it, and remained an incumbrance notwithstanding the immediate vesting of title in Frank Leslie. (Bliss v. Brown, 78 Kan. 467, 96 Pac. 945.)
The judgment will be modified to the extent indicated, and as so modified, affirmed.