97 Kan. 438 | Kan. | 1916
The opinion of the court was delivered by
In a suit to set aside a conveyance of real estate and for partition two defendants recovered judgment for costs. The other parties appeal. All of them except the administrator are the children of Annie Parr, deceased. Mrs. Parr was a widow and lived alone. Her four daughters were married and had homes of their own. One of the defendants is a son who made no appearance in the action.
The real estate consists of a house in Ottawa, valued at $750, which Mrs. Parr owned and occupied as her home. She died intestate October 18, 1914. For a year before her death she was quite sick and required attention. Two of her daughters, Mrs. Rodgers and Mrs. Alumbaugh, left their families, came to Ottawa, and took care of her almost constantly from 'May until her death in October. On September 12 she executed a warranty deed conveying the property to these two
It was contended by the appellants that at the time the deed was executed Mrs. Parr was old and feeble, and that the grantees obtained the deed by undue influence; also that the deed was executed for the purpose of defrauding the creditors of Mrs. Parr. The findings are adverse to all the contentions of the appellants as to the facts. The court finds that Mrs. Parr was perfectly rational when she made the deed, that she did not believe she was indebted to any person except Doctor Pennington, and that one of the grantees expressed at the trial a willingness to pay the doctor’s bill and the funeral expenses.
It is insisted by the appellants that Mrs. Parr had no right to make a gift of the property to the grantees and thus defraud her creditors, and that if the conveyance was made in repayment for services rendered by the grantees, it is void as against the creditors because the services rendered were not equal to the value of the property. For several reasons these con
No motion for a new trial was filed and the findings of fact are not disputed. The appellants’ contention is that on the findings the court erred in holding that the conveyance was not in fraud of creditors. There is a finding that Mrs. Parr occupied the premises as her homestead. Authorities, therefore, holding that proof of an intent to defraud is not necessary where the effect of the conveyance is to hinder, delay or defraud an existing creditor can have no application to the facts here. “A debtor cannot commit a fraud upon his creditor by disposing of his homestead. (Hixon v. George, 18 Kan. 253, 260.)” (Winter v. Ritchie, 57 Kan. 212, 214, 45 Pac. 595, 57 Am. St. Rep. 331. See, also, Wilson v. Taylor, 49 Kan. 774, 31 Pac. 697; Roser v. National Bank, 56 Kan. 129, 42 Pac. 341.) A debtor may convey the homestead with or without consideration, and the creditor can not complain. (Hixon v. George, supra.)
The judgment is affirmed.