92 Kan. 149 | Kan. | 1914
March 2, 1910, defendant Pierce was granted a decree of divorce from his wife, Lulu Pierce, giving him a lien for $1125.50 on a quarter section of land in Osage county which stood in her name. On the same day Pierce assigned $1000 of this lien to the Rossville State Bank to secure an indebtedness.. The bank issued execution and the land was sold, and a motion made to confirm the sale. A Chicago attorney had sued the wife in Osage county for an attorney’s fee, attaching the land in question, and on November 3, 1910, Lulu Pierce having been adjudged insane, the. plaintiff as her conservator brought a suit to set aside the decree of divorce and enjoin the attorney from further action and to clear the land of all the liens growing out of the proceeding. The bank filed its answer and cross-petition, admitting the assignment of the $1000 lien, alleging that a few days before March 1, 1910, Pierce applied for a loan of $3000 to secure an option on certain land, and that he had paid the loan except $940.50, with interest from October 7, 1910, 'alleging that the land in question in the name of the wife was purchased with the money of Pierce and was in equity his property and subject to his indebtedness. At the conclusion of the trial the court found sufficient reason for setting aside the decree of divorce, and for enjoining the Chicago attorney. The eleventh finding was that long prior to the institution of the divorce suit Pierce purchased the Osage county land and took a deed thereto in the name of his wife; that there was no evidence to show that she paid anything for it or ever had any funds of her own, “and that she never had any other or greater right in or to said real estate except such as accrued to her through her marital relations to Gilbert P. Pierce.” It was further found that in the fall of 1909 Pierce obtained an option on certain land, expiring March 1, 1910, and made application to
The trial court having permitted both journal entries to remain of record, it is not for this court to say that either shall be expunged, but rather to regard the two together as covering the points decided.
It is claimed that the court erred in refusing to determine which was entitled to a right of redemption, but as the divorce has been set aside and the relations of husband and wife still exist we hardly see how this was a material or necessary matter to be passed upon in this case.
While we find nothing to indicate that the bank acted otherwise than in the best of faith, still the evidence shows that after the loan was made with which to secure the option, and the deed in blank to the land procured' had been delivered to the bank, this was returned to Pierce, who traded the option land for Kan
The decree in the case in which the assigned lien was awarded to Pierce was set aside because the wife was. shown to have been insane when the decree was rendered and for two or three years before, and, being-under such disability, of course she would not be bound by the lien provision which formed a part of the decree, except upon the equitable theory that having received a benefit by reason of the loan for which the lien was assigned the court might refuse to set the decree aside-unless the lender were protected. (Gribben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584; Leavitt, Guardian,, v. Files, 38 Kan. 26, 15 Pac. 891; Myers v. Knabe, 51 Kan. 720, 33 Pac. 602; Hospital Co. v. Philippi, 82 Kan. 64, 70, 107 Pac. 530.)
We are mindful of the fact that by means of the loan extended by the bank the estate of Pierce and wife was. enhanced $2200, but the maj ority of the court are more impressed by the consideration that the debt for which the lien is claimed has been substantially paid, and by the further consideration that the bank could have-
Such being the- conclusion reached after a careful consideration of all the facts, it follows that the order confirming the sale 'must be reversed, and it is so ordered.