Ransom v. Sargent

22 Kan. 516 | Kan. | 1879

The opinion of the court was delivered by

"Valentine, J.:

The petition of the plaintiff, Margaret Ransom, alleges in substance that on September 1, 1877, and for a long time prior thereto, she was the owner of the real •estate now in controversy; that said premises were then and ■still are occupied as a residence by one C. Homer, a single man, and by his family. (This fact of occupancy seems to be alleged as a fact in favor of the plaintiff, but we would -think it was rather against her.) On said September 1,1877, the plaintiff executed a deed for the property to Homer, and he executed a mortgage thereon to H. J. Ransom, and also a ■deed back to the plaintiff, Mrs. Ransom. These two deeds and this mortgage were executed simultaneously, and as parts and portions of one and the same transaction. The deed from the plaintiff to Homer was executed without any consideration other than as herein expressed, and solely for the purpose of enabling Homer to procure a loan of money from said H. J. Ransom, and to secure it in his own name; and it was the purpose and intention of the parties then and there-verbally expressed, that said Homer should. not acquire any beneficial interest in said property other than that necessary to enable him to effect the said loan; and he never did acquire any interest in said property other than as above stated. The deed from the plaintiff to Homer and the mortgage from Homer to H. J. Ransom were recorded September 19, 1877,. and the deed from Homer to plaintiff was recorded November 10, 1877.

Prior to said September 1, 1877, and on January 28,1876, a judgment was rendered in favor of the defendant Kate-Sargent, and against said Homer. This judgment is still in force. On January 10, 1878, an execution was issued on said judgment, and placed in the hands of the defendant W. D. Disbrow, as sheriff, for service. On January 15, 1878, said Disbrow levied said execution on said property, and was-about to sell the same, when this action was commenced to-restrain and perpetually enjoin the defendants from further proceeding against said property. The defendants demurred to the plaintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action against them,, and the court below sustained the demurrer. The plaintiff then brought the case to this court for review.

We think-the court below erred. We do not think that Homer had any interest in said property to which a judgment lien could attach, or upon which an execution could be levied. Harrison v. Andrews, 18 Kas. 535; Hazelton v. Lesure, 91 Mass. (9 Allen), 24. But for the argument and authorities-in this case, we would refer to the able brief of counsel for plaintiff. We would suggest one query, however. We suppose that the defendants claim solely upon the ground that the defendant Sargent obtained a judgment lien upon the property at the time that the plaintiff executed her said deed to Homer, and that they do not found any claim upon the-mere fact of the levy of the execution independent of such judgment lien; for at the time the execution was issued and levied, both deeds and the mortgage were recorded, and the-defendants were bound to take notice of the contents thereof, and to know that the plaintiff owned the property (provided she did own it), and to know that H. J. Ransom had a mortgage lien upon it (provided he did have any such mortgage lien). The query, then, which we wish to suggest, is this: If the defendant Sargent obtained a judgment lien on said property, was it prior to the mortgage lien of H. J. Ransom, or was it subsequent thereto? We suppose the defendants would answer that it was prior thereto, and that H. J. Ransom was deprived of the security which the parties intended he should have, and which he in good faith supposed he was getting. We however do not think that the defendant Sargent obtained any judgment lien on said property.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

All the Justices concurring.