Shanks v. L. Simon & Co., 57 Kan. 385

Shanks v. L. Simon & Co.

57 Kan. 385 | Kan. | 1896

Allen, J.

The first and most important question presented by counsel for plaintiffs in error arises from the fact that the attachments in favor of L. Simon & Co., and M. D. Wells & Co., were levied before the final delivery of the deed to Shanks, which occurred on the 4th of September, 1891. The attachment of the plaintiff was levied on August 29, 1891, and that of M. D. Wells & Go. two days later. The goods exchanged for the land by Shanks were shipped *391to Lane on the morning of August 28,‘and arrived there on the 1st of September.

1. Equitable interest subject to attachment. 2. Levy of attachment not avoided, when. It is urged that an attachment binds only the interest which the debtor owns at the time an attachment is levied ; that it does not bind an after-acquired title, and that neither E. N. Shanks nor Annie E. Shanks, whose name was written in the deed as grantee, obtained any title to the land until the delivery of the deed. The general rule of law is that a deed takes offect only from. delivery, and that an attachment does not bind a title subsequently acquired. It must be conceded that the legal title to the land did not actually pass to Annie E. Shanks until the delivery of the deed on September 4. But to sustain the attachment it is not . indispensable tnat tne defendant siionld have been vested with the .legal title at the time of the levy. It is sufficient if he had an eqitable title. §222 Code; Bullene v. Hiatt, 12 Kan. 98; Aldrich v. Boice, 56 id. 170. The contract between Shanks and D.evore for the exchange of the goods for the land was made on the 24th of August, and the deed was then executed, signed, and acknowledged. On the next day it was deposited in the bank at Clarence to be delivered when the goods should arrive at Lane. The goods were shipped on the 28th, and received at Lane on the 1st of September. If we were to treat this merely as a parol contract, although not enforceable if either party should choose to repudiate it it was not absolutely void. Becker v. Mason, 30 Kan. 697; Dupuy v. Delaware Ins. Co., 63 Fed. Rep. 680. It was voidable only at the election of one of the parties to it. Neither party elected to avoid it. On the contrary both parties elected to affirm and execute it. It was, in fact, carried out exactly in *392accordance with its original terms, with the single exception that the name of Mrs. Shanks was inserted in the deed as grantee. In this case there was the added circumstance that the deed was actually executed by Devore, and deposited in the bank at Clarence, to be delivered when he should receive the goods at Lane. The deed bore date August 24. It was delivered September 4. If it were important to determine the question as to the date when the legal title passed from Devore to Mrs. Shanks, it is possible that the doctrine of relation might properly be invoked in favor of the attaching creditors; but in this case it is unimportant when the legal title vested, if Shanks at the time the first attachment was levied had such an equitable interest in the land as might be seized for his debts. The parol contract had been duly made, and the deed duly executed, and he was entitled to the delivery of it as soon as the goods should be delivered to Devore at Lane. 1 Devlin, Deeds, § 327. The goods were delivered, and the deed was delivered. Under all these circumstances it is clear to us that, when Shanks commenced the actual performance of the contract by shipping the goods, he obtained an equitble interest in the land, which' neither he nor his wife may now deny for the purpose of defeating the attaching creditors. There is no force in the objection to the order directing the application of the proceeds of the land to the payment of the judgment in favor of King & Co. The levy of the attachment in their suit was sufficient to give them a standing in the case and to authorize the court to protect their interests.

*3933. Evidence sustains finding. *392There is ample evidence to uphold the findings that the name of Annie E. Shanks was inserted in the deed *393for the purpose of defrauding the creditors of R. N. Shanks, that she was chargeable with knowledge pf the fraudulent purpese of her husband, and that she was not a bona fide purchaser of the land. Her refusal to answer pertinent questions concerning the transactions between herself and husband, on which she based her claim as a purchaser, places her in a very bad light. The questions were entirely proper, and there was no fair semblance of an excuse for her refusing to answer. The Court was justified in inferring that, if she had made truthful answers, they would have disclosed the want of foundation for her claim.

We are entirely satisfied of the correctness of the judgment of the trial court, and it is affirmed.

All the Justices concurring.