87 Kan. 610 | Kan. | 1912
The opinion of the court was delivered by
The bank sued Duncan and wife to recover the balance on a note for $3000 and to foreclose a mortgage on their homestead at Norton which stood in the name of the wife. The petition alleged that on May 18, 1910, the defendants executed their promissory note for $3000 due in ninety days; that on that day the defendants orally and in writing agreed with the plaintiff to execute and deliver the mortgage; that but for such promise, on which plaintiff relied, the money would not have been advanced; that pursuant to such agreement Elizabeth Duncan did, on May 18, execute and
“I am in receipt of yours of 30 enclosing mortgage for $3000 which you ask me to sign. You are cer*613 tainly somewhat mistaken in what I owe the National Bank. This mortgage was made to cover check I drew on your bank which you wired me you could not take care of but two days later you wired me you had.taken care of my check for $3000 so I sent mortgage on horses and this mortgage on property there was fixed by my wife, but during the time you wired me you could not .take care of check and then you did. I let Mr. Poppin of Steamboat Springs, have interest in the horses and on May 28 he mailed you New York draft 50352 for $2000, so I only owed $1000. I afterward bought a few horses and gave you note for $500 with myself and wife on the note. ... I enclose you the mortgage without signing and it don’t look good to give note for $3500 when I am only indebted $1500.”
On May 27 he wrote from Steamboat Springs that he was glad the bank had protected his paper, that' if it had been done at once it would have saved him over a thousand dollars, that he had to let a local party in so that the profit would' have to be divided.
By considerable industry we have been able to extricate the foregoing facts from the abstract and they appear to show (although the alleged letter was lost and the cashier’s testimony was not had) that Duncan did advise the bank that he and his wife would make the mortgage for $3000 to take care of the draft for the same amount. That the bank repeatedly refused to protect the draft, but did finally do so, receiving a mortgage on the horses and a credit of $2000, and after this was done the bank procured Mrs. Duncan to execute the mortgage for the full amount and later forwarded it to Duncan for execution, and that he very naturally refused to execute á mortgage for $3000 to cover a debt which he claimed was $1500. It is familiar law that the homestead can be alienated only by the joint consent of the husband and wife, and while such consent need not always be in writing (Dudley v. Shaw, 44 Kan. 683, 685, 24 Pac. 1114; Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Johnson v. Samuelson, 69 Kan. 263, 76 Pac. 867), it’must always be joint and
The only agreement to join in the mortgage was upon condition that the bank honor the draft so that the contract at Steamboat Springs could be carried out. The bank refused to protect the draft and Duncan was forced to make other arrangements and lose a large share of his profits. When the bank finally concluded to take care of the draft its delay had already caused the change and the loss, and even after Mrs. Duncan had signed and requested the return of the instrument her request was denied and the mortgage, said to be in Kansas City, was forwarded to Duncan in order to secure his signature, the bank knowing at the time that the wife, so far as she could, had withdrawn her consent. To hold that the bank could thus force Duncan to treat the mortgage which he had been requested to sign as his would be to permit one party to change another’s contract and then bind him to it as changed.
While there is nothing in the pleadings to indicate it, the defendant’s brief suggests that the matter was treated and decided as an equitable mortgage. But equitable mortgages are declared when the party’s conduct requires such holding in order that an innocent party who has kept his agreement may not suifer loss by one who has failed to keep his. The bank is in no condition to claim that the instrument signed by the
. “But an equitable mortgage can arise only from a specific agreement between the parties in interest. And there must be clear and unequivocal proof of the intention to create a mortgage and of the sum which it was to secure. . . . But in order to have this effect there must be a complete and binding agreement for the giving of a mortgage, and a mere proposal or offer to give a mortgage, not accepted or assented to by the other party, nor acted upon by him, will not amount to a mortgage in equity.” (27 Cyc. 976, 988.)
Complaint is made that the court refused to quash the summons, but -as there was an appearance and answer the error, if any, was waived.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.