122 Kan. 423 | Kan. | 1927
The opinion of the court was delivered by
This is an action by plaintiff, out of possession, claiming to own certain real property in fee simple, pleading fully the instruments and facts upon which it bases such claim, asking that defendant be required to set forth all claims he has to the title or possession of such real property, that such claims of defendant be adjudged to be void, that plaintiff be adjudged the absolute owner in fee simple of the real property and entitled to the immediate possession of the same, and that defendant, and all persons claiming by, through, or under him, be barred of any right, title or interest in or to the real property. There was a second cause of action in which plaintiff alleged that defendant had unlawfully deprived plaintiff of possession, to its damage in a sum named, for which sum judgment was prayed. The defense was that there was an indebtedness from plaintiff to defendant, and that the instrument relied upon by plaintiff evidenced such indebtedness. The trial proceeded before a jury. At .the close of all the evidence the plaintiff demurred to defendant’s evidence pertaining to the first cause of action and moved the court to render judgment in its favor upon the first cause of action. The demurrer and motion were sustained. Plaintiff dismissed its second cause of action. The court adjudged plaintiff to oe the owner in fee simple of the real property, and that.it have immediate possession thereof, barred defendant from any and all rights therein, and directed the sheriff to put plaintiff in possession. Defendant’s motion for a new trial was overruled, and he has appealed.
The real question to be determined is whether a deed by defendant to plaintiff was a conveyance of the property, or evidenced an indebtedness. The facts disclosed by the evidence are not seriously in dispute, and are substantially as follows:
Defendant, a single man, owned a farm' of 160 acres in Lincoln county, which was encumbered by a mortgage of $10,000. He owed the plaintiff bank two notes. In November, 1922, these notes were past due and the bank’s officials asked defendant for security and suggested taking a second mortgage on his farm. Defendant refused
“Now, therefore, this agreement is made as a final agreement and on the following conditions: First party agrees that the repurchase option mentioned be returned to second party (here follow provisions as to crops, method of farming, one-third of the crop to be delivered to plaintiff, some spring crop might be put in, and in effect continuing the lease until August 1, 1924). It is further agreed that second party will give possession of all land and buildings on said quarter section ... on August 1, 1924, and that he may go on said land after that date to care for growing crops of which he has a share, but for no other purpose.”
This instrument contained an additional stipulation, as follows:
“It is further agreed by both parties hereto that up to and including June 6, 1924, either party hereto may sell said land for fourteen thousand and five hundred dollars ($14,500), any amount in excess of the amount then owing first party to go to second party and that the $110 paid by second party on October 23, 1923, and any further amounts paid by second party at any later date shall be credited on the general indebtedness of second party and the interest on any amounts so paid shall cease on the date of payment.”
In April, 1924, the $10,000 indebtedness on the land having come due an agreement was made between the parties that the first party should pay the indebtedness and make a new loan not exceeding $10,000 in two loans, the first to be $8,000 and the second to be $2,000, without affecting defendant’s option to purchase. Defendant did not exercise his option to purchase, and in July, 1924, plaintiff gave him notice to quit, and another notice in August, and filed a suit for forcible detainer before a justice of the peace. Defendant answered and contended that the deed was given to the bank to secure his indebtedness. The justice thought the title to the real estate was involved and certified the case to the district court. Plaintiff dismissed that case, then brought this action.
The three instruments executed on June 6, 1923, were (a) a general warranty deed from defendant to plaintiff (subject to a mortgage of $10,000), (6) an instrument by which plaintiff gave defendant an option to purchase the land at any time within one year from date at a named, or determinable, price, and (c) an instrument by which the land was leased by plaintiff to defendant for one year —the defendant to farm the land and to pay, or deliver, to plaintiff a certain share of the crop as rent. This had a stipulation indorsed thereon, in substance, if defendant exercised his option to purchase, the rentals he had paid, if any, should be credited on his “general indebtedness.” Piad it not been for these words “general indebtedness” used in this stipulation there could have been no question but what the deed was a conveyance of title and not a security for a debt. (Yost v. Bank, 66 Kan. 605, 72 Pac. 209; Frankovich v.
Otlier questions argued are so related to those we have previously discussed that there is no necessity of taking them up separately. The judgment of the court below is affirmed.