88 Kan. 350 | Kan. | 1912
The opinion of the court was delivered by
On June 23, 1910, the appellees commenced three'separate actions against appellants. The pleadings in each were alike and asked for the recovery of one-twelfth- of a half section of land in Ellsworth county, and for the same proportion of the rents and
The appellants answered in each action with a general denial, and a further defense, in substance, that if Alma Olson ever acquired any interest in the lands they were encumbered by a mortgage for thirty-two hundred dollars, which Oliver W. Olson, believing himself to be the owner of the lands, paid with his own money; and that thereafter .appelant John A. Peterson purchased the lands in good faith and for full value from Oliver W. Olson and received from the latter a warranty deed therefor, a copy of which was attached to the answer;'that the appellee thereupon abandoned the premises, and that John A. Peterson, believing that he had acquired full ownership thereof, made lasting and valuable improvements thereon, a particular description of which was set forth; that the appellee knew at the time that Peterson was purchasing in the belief that Oliver W. Olson was the owner of the lands and knew that Peterson was making the improvements, but made no objection and was therefore estopped to question .his title. The reply asked that if it should be adjudged that appellee Gerda P. Olson acquired any interest in the land she should be required to contribute her equitable portion of the incumbrance paid by Oliver W. Olson.
The reply in addition to a general denial set up a copy of the deed by which it was claimed the title to the- land in question passed to Oliver W. Olson and 'Alma Olson, and alleged that appellants were not entitled to any relief by reason of the payment of the mortgage for the reason that Oliver W. Olson had received and collected the rents and profits of the lands from the date of the conveyance in 1898 until 1906 and
On these issues the case of Gerda P. Olson was tried before a jury and a general verdict was returned finding her to be the owner and entitled to the immediate possession of an undivided one-twelfth of the lands. Appellants’ claim for subrogation was sustained, and from Gerda P. Olson’s share' of the rents and profits the court deducted $314.40 as her proportion of the mortgage and rendered judgment in her favor upon the general verdict.
The cases of Olive Olson and Mingnon Holmgren were consolidatéd and tried, with the same result. The appellants seek to reverse the judgments, and the appellees have prosecuted separate cross appeals in which it is contended that the court .erred in permitting appellants to be subrogated to the rights of the mortgagee.
The undisputed facts, as shown by the evidence and findings, are that Oliver W. Olson and Alma Olson were husband and wife and in 1898 resided upon the half section of land in question, which belonged to the husband. He became involved in litigation, .and for the purpose of defrauding creditors conveyed the land by warranty deed to his brother, Neis Olson. His wife joined in the deed which recited a consideration of
The main contention is that the appellees in these cases failed to show any right to recover, and that the court erred in overruling a demurrer in each case to the evidence, in refusing to direct a verdict for appellants, and in overruling motions for judgment on the special findings and for a new trial. All these claims of error are based upon the contention that the two deeds being shown to have been parts of the same transaction, the second was intended by the parties merely to restore to the grantors in the first such interest as each of them had conveyed by the former deed, and that no evidence was offered from which the court or jury would be justified in finding that the intent of the parties was to convey any interest in the lands to Alma Olson. It is argued that the fact that the grantors in the first deed are described as “Oliver Olson and Alma Olson, his wife,” while the second deed conveys the same lands to “Oliver Olson and Alma Olson, his wife,” together with the undisputed evidence and the findings of the jury that the land belonged to Oliver Olson originally, that the first deed was made for the purpose of defrauding his creditors, that Neis Olson, the grantee, knew this, that there was no change of possession under either deed, that both Oliver Olson and his wife continued after the second deed to treat the land in the same way they had formerly treated it, that the wife paid no consideration for the conveyance, that Oliver Olson paid the taxes and the wife never claimed any interest in or exercised any control or ownership in the lands, are conclusive as to the intent of the parties in the absence of any affirmative evidence showing the contrary. We concede the force of thesé facts and circumstances as evidencé tending to show
(See also, extended note to Adoue v. Spencer, 62 N. J. Eq. 782, 49 Atl. 10, in 90 Am. St. Rep. 484, 518.)
The acceptance by Oliver of the deed conveying the property in equal shares to himself and wife is some evidence tending to show that he was satisfied with the arrangement, and that he intended thereby to make a gift to his wife of a half interest in the land.
The appellants rely strongly upon the case of Carter v. Becker, 69 Kan. 524, 77 Pac. 264. There a wife inherited property from her father. In the settlement with her coheirs deeds were exchanged. The conveyance of her share was taken in the name of her husband as grantee. After her decease her children brought ejectment against the grantee of the husband, as in the case at bar. It was held that the question of whether the wife by consenting to the conveyance intended to make her husband a gift of her separate property was one of fact for the jury to determine; that the burden rested upon the plaintiffs to establish that the property was the separate property of the wife, but that when that fact was shown, it then devolved upon the defendant to show that a gift was intended and not a trust. A judgment in defendant’s favor respecting the interest conveyed by the deed to the husband was reversed and a new trial ordered because of an instruction which charged that prima facie the deed was what it purported to be on its face and was made to the person intended, that unexplained the transacr tion made the grantee the owner of the property because of the presumption that all transactions are fair
That there is room for'distinguishing the cases seems apparent. While in the present case the land belonged to the husband, it could hardly be called his separate property. It was not his at the time of the marriage; it did not come to him by gift, descent, devise or bequest. The family had lived upon the land and occupied a part of it as the homestead from the time it was purchased. Presumably the wife performed her share in acquiring it and adding to its value. Where under such circumstances the husband conveys or consents that the title to the land shall be conveyed to the wife without the payment by her of a valuable consideration, is there a presumption that she is to hold the title in trust for his benefit?
The presumption of law that was held to be controlling in Carter v. Becker, supra, arose upon the adoption in this country of the married women’s property acts and because of the incapacities of the wife and the marital fights enjoyed by the husband at the common law. As said in the opinion in the Carter case (69 Kan. 524, 77 Pac. 264), the married women’s act “was designed to secure to the wife, without additional effort or precaution on her part, that which before, under the same circumstances, might have become her husband’s because of his marital rights, or because of her in-capacities.” (p. 529.) The presumption, which was lost sight of in the instruction in the Becker case, is one which the "courts created after the adoption of the statutes placing the wife on a level with her husband in her property rights, and was required in order to secure to her those rights. -Appellants insist that the principle is reciprocal, and that the presumption is of equal force where the title to property of the husband
Appellants contend further that ejectment will not lie to enforce a fraudulent contract, and that the heirs of Alma Olson can not maintain the action because of the fraud in the first conveyance. But there was no fraud in the second conveyance. Neis was,under a moral obligation to reconvey. This supplied a valuable and sufficient consideration. The fact that Alma was the wife of the fraudulent grantor in the first deed furnished a consideration for a conveyance to her if satisfactory to the husband. So far as the title is concerned, both parties must claim under the deed from Neis Olson. The deed in question in plain terms conveys the land to Oliver W. Olson and Alma Olson. There is nothing uncertain or ambiguous in its terms.
The court submitted to the jury the question whether it was the intention merely to restore to the original grantors the same title they formerly held, or whether it was intended to convey an absolute interest to the wife, and we find no error in the instructions given or in the refusal of those requested. The court instructed that the parties had the right to convey the real estate to Oliver Olson-and Alma Olson, and that a deed so made would vest half -the title in the wife and half in the husband if such was the intention of the parties; and that if the jury believed from the évidence that such was the intent of the parties they should find for the plaintiffs; that it was for the plaintiffs to show by a preponderance of the evidence that such was the intent ; further, that the payment by the husband of the consideration for a conveyance to the wife does not necessarily vest the title to the real estate in her and that the intention of the parties would control. It was obviously not error to refuse an instruction that before the plaintiffs could recover they must show by a preponderance of the evidence that Peterson had actual notice of the existence of the deed from Neis Olson. It was of record and imparted notice. The jury had before them all the facts in connection with, the execution of both deeds, the manner in which the parties treated the real estate after the conveyance, and all the
The only question presented by the cross-appeals is whether it was error to charge the appellees with their proportionate share of the mortgage paid by Oliver Olson. We think the court rightly held that the appellants were entitled to be subrogated to the rights of the mortgagee. “Subrogation is a creature of equity, invented to prevent a failure of justice.” (Safe Deposit Co. v. Thomas, 59 Kan. 470, 475, 53 Pac. 472.) In the case just citied (p. 475) an excerpt from Johnson v. Barrett et al., 117 Ind. 551, 19 N. E. 199, 10 Am. St. Rep. 83, was quoted with approval. It states the general principles which seem to cover the facts in the present case.
“Subrogation is the substitution of another person in place of a creditor, so that the person substituted will succeed to all the rights of the creditor having reference to the debt due him. It is independent of any merely contractual relations between the parties to be affected by it, and is broad, enough to include every instance in which one party is required to pay a debt for which' another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter.” (p. 554.)
It is insisted, however, that Peterson never paid the mortgage and that it was paid years before he purchased the land. If Oliver Olson had been sued by the children to recover their interest as heirs of Alma Olson he could have claimed the right to be recompensed for their share of the mortgage. He was not a volun
“It is merely necessary that his payment should have been made in good faith for the protection of an interest which he believed himself to have in the estate, and in discharge of a burden actually resting upon the property, so that his payment has increased the value of -the estate for the benefit of those who turn out subsequently to. be entitled to the title.”
Whatever rights Oliver would have had to reimbursement from the appellees passed to Peterson. Applying the foregoing principles of equity to the facts, it follows that the heirs of Alma Olson, who subsequently turn out to be entitled to a portion of the lands, the value of which was increased by the payment made by the assignee of appellants, should reimburse the latter to
The judgment in each case is affirmed.