Martin v. Allen, 74 P. 249

Martin v. Allen

74 P. 249 | Kan. | 1903

The opinion of the court was delivered by

Smith, J. :

It is contended'by counsel representing plaintiffs in error that the deed from James H. Martin to David Allen, and the contract given back by the latter to Martin, when considered together, constituted a mortgage. “We think otherwise. The deed to Allen recites that the land is encumbered by a mortgage, a judgment, and unpaid taxes. Neither the *761mortgage nor judgment appears from tlie writings to have been owned or held by Allen. In the agreement Allen assumed the payment of these encumbrances and the taxes, which amounted in the aggregate to $1206. The agreement recites that “now, in order to meet said claim and to pay it off to said David Allen,” Martin and wife have executed- the deed. It is further provided that Martin should have three years in which to redeem the land by paying said sum of $1206, time being of the essence of the contract.

The test in such cases is whether the grantor in the deed sustains the relation of a debtor to-the grantee. (McNamara v. Culver, 22 Kan. 661.) In the present case could the grantee, David Allen, at the expiration of the three years which was given the grantor to pay, have successfully prosecuted an action against the latter to recover the $1206 and interest? We think not. The contract between the parties negatives the existence of a debt. After the execution of the deed and contract they did not sustain the relation of debtor and creditor toward each other. The agreement expressly states that the deed to Allen was executed and delivered to him to “meet said claim and to pay it off.” The deed was given in satisfaction of the debt, computed to amount to $1206. The facts are very like those in the case of McNamara v. Culver, supra.

Parol evidence was admitted by the court to arrive at the intention of the parties, and the circumstances of the transaction were considered. The testimony was conflicting. Counsel for plaintiffs in error point out certain facts tending to show that Allen’s conduct and admissions were indicative that he stood in the attitude of a mortgagee, and that Martin regarded him as such. If uncontradicted, such evidence might have compelled a different result in the court below or here. *762Tike finding of the trial court is conclusive on the disputed questions.

It is contended that defendants below being tenants by sufferance no judgments for rents and profits of the land could lawfully be rendered against them.

■ The common-law rule has been abrogated by statute ' in this state. (Gen. Stat. 1901, § 3864.)

The judgment of the court below will be affirmed.

All the Justices concurring.