55 Kan. 553 | Kan. | 1895
On September 27, 1889, the defendants in error, being the widow and children, the heirs at law of LukeE. Gorsuch, deceased, commenced their action to have a certain deed for 640 acres of land in Johnson county declared and decreed to be a security merely, and for damages in the sum of $4,000. A trial before the court without a jury at the September term, 1890, resulted in a judgment, October 4,1890, in favor of the plaintiffs below, decreeing that the deed of date December 10, 1888, from Luke E. Gorsuch and Mary E. Gorsuch, his wife, to Benjamin Reeder, the defendant below, was and is in equity a mortgage, and not a deed of conveyance, and also that the plaintiffs below should be restored to the immediate possession of the lands, and that they have and recover of and from the defendant below the sum of $1,880 damages and costs of suit.
At and before the time of the execution of said deed, said land was heavily incumbered by mortgage indebtedness to several persons, one of the principal mortgagees being Mary J. Hughes, the daughter of the defendant below. She resided in Indiana, and he transacted her business and also some of his own in her name. The subject of the indebtedness of LukeE. Gorsuch, and as to devising some plan whereby he might be relieved of it and still save something for his family, had been talked of for some time before the transaction in question. On December 8, 1888, Luke E. Gorsuch, being quite ill and not expecting to recover, the defendant below called at his house and an agreement was reached, and he went to Olathe and had a deed prepared and also a contract. He went back to the Gor-such residence, taking with him a notary public, and
“ Witnesseth, That said Gorsuch has this day sold to Reeder the east half of section 29 and southeast quarter of section 20, and northeast quarter of section 22, all in township 14, range 24, Johnson county, Kansas. Now, if the said Luke Gorsuch shall sell all of said land in 18 months from this day, and pay off all the liens which are now on said lands, with interest to day of sale, then said Gorsuch to have all the money arising from the sale of said lands over and above the payment of all the liens aforesaid ; but said lands shall not be sold for less money than will pay all the demands from the day of sale aforesaid. Reeder to make deed to purchaser. If said lands shall not be sold within the time herein specified, and on the time herein specified, then this agreement to be null and void.”
“ V. That said Reeder has not released or procured to be released airy of. the lands in controversy from any of the mortgage incumbrances as assumed by said Reeder in said instrument purporting to be a deed of December 10, 1888, but the same remain subsisting incumbrances on all the said lands.”
In view of the evidence and the language of this finding, we cannot be certain whether the court meant to say that Reeder had not paid any part of the indebtedness, or only that he had not caused satisfaction of any of the incumbrances to be entered.
The court further finds that the written contract of December 8, 1888, was entered into between Benjamin Reeder and Luke E. Gorsuch, and that before and'at the time of the execution of said deeds of December 8 and December 10, respectively, Luke E. Gorsuch and Mary E., his wife, “believed, understood and in
The special findings of the court alone being insufficient to warrant the conclusion that the deed was in fact a mortgage, it is necessary to take into account the evidence on that point, and from a careful consideration of it we are constrained to differ with the learned trial judge. It should be remembered that Reeder was not a mortgagee, and it is not shown that lie had any interest in any of the incumbrances, except as the agent of his daughter. By the deed, he expressly assumed the greater part of the indebtedness so that he was personally liable thereon, and he took the land subject to all other incumbrances. The instrument of writing signed by Gorsuch and Reeder
Taking the deed and the contract together, we think that they constitute a sale of the lands by Gorsuch and wife to Reeder, the consideration being that Reeder assumed a certain part of the indebtedness, and agreed to take the land subject to all the incumbrances, and to hold the same for a period of 18 months, on condition that Gorsuch might sell it within that time, if he could do so, for the amount of the incumbrances- or more, and that he should have the benefit of any excess, Reeder to make deed to the purchaser ; and that if the land should not be sold within the time speci
The judgment of the district court will be reversed, and the cause remanded for a new trial.