22 Kan. 336 | Kan. | 1879
The opinion of the court was delivered by
This was an action brought by the Atchison National Bank against Frank Sproul and others, to subject certain land situated in section 15, township 4, range 21, in Doniphan county, Kansas, to the payment of a certain judgment rendered in favor of the bank and against Sproul. The facts of the case are substantially as follows: In 1871, Sproul purchased said land on credit. When he got a deed for it is not shown, nor is it material. Afterward, he created certain debts in favor of others and, against himself, as follows:
1. On April 1, 1872, one to Horatio Tuthill, for $1,000. This debt was created for $1,000 borrowed by Sproul of Tut-hill, with which to partially pay for said land. There is now due on said debt $1,385.
3. On January 6, 1874, as surety for Thomas L. Chilton, one to George T. Hoagland for some amount, on which debt judgment was afterward rendered in favor of Hoagland, and against Chilton and Sproul, for $2,800 and costs, on which judgment there is still due $2,262.95, and costs.
4. On May 20,1874, one to James M. Hawley, for $1,200. This debt was also created for money borrowed by Sproul with which to partially pay for said land in section 15. There-is now due on said debt $1,510.
5. On March 20, 1875, one to some person for some-amount, on which debt the Atchison National Bank obtained a judgment against Sproul for $195.85 debt, and $15 attorney’s fees and $8 costs. There is now due on said judgment $277.80.
The debts to Tuthill and Hawley were respectively secured by mortgages executed by Sproul and wife, Virginia F. Sproul, on their homestead situated in section 10 of said township and range. The title to the homestead was in Sproul. Before Mrs. Sproul would sign the Hawley mortgage, her husband had to enter into an agreement with her that he would deed to her the said land in section 15. This agreement was in parol. Afterward, and on May 29, 1875,. Sproul, in fulfillment of his said agreement with his wife, deeded to her the said land in section 15, and on June 12, 1875, the deed was duly recorded. Afterward, and on August 30, 1875, Sproul and wife voluntarily executed a mortgage to Hawley on a portion of said land in section 15, as an additional security for the Hawley debt, and delivered it to Hawley, but upon the express condition and consideration, to which Hawley agreed in writing, that if ever Hawley should be compelled to resort to legal proceedings to collect his claim, he would first exhaust said land in section 15 before
It is also claimed, that as said conveyance was a “gift,” it was void under §2 of said act. (Gen. Stat. 504.) Said conveyance, however, was not a “gift,” and neither was it “made with the intent to hinder, delay or defraud creditors,” as it must have been under that section in order to be void. The conveyance was for a sufficient consideration, and was for a meritorious purpose. It was made as a security for the protection of Mrs. Sproul’s homestead. With reference to the consideration, we would say that any loss to Mrs. Sproul, or any gain to Sproul, or to any one designated by him, would be a sufficient consideration for the agreement and for the conveyance. Now with reference to the loss and gain: Mrs. Sproul incumbered her homestead to the extent of $1,200 (not considering Tuthill’s mortgage) subjecting it, upon a contingency, to be sold away from her, and herself and family to be di’iven from the premises, houseless and homeless. This was certainly a sufficient consideration for said agreement, and for the deed. Besides, Sproul, by means of her signature to
It will be noticed that the Hoagland and Lenker judgments were not rendered until after these second mortgages to Tuthill and Hawley were executed. Hence, even if the deed from Sproul to his wife were void, still Tuthill and Hawley would have mortgage liens on said land in section 15 prior and paramount to the judgment liens of Hoagland and
In this connection we have expressed no opinion with reference to the priority or subsequence of the bank judgment. We shall now, however, proceed to state our opinion with reference to the priorities and subsequences of the rights of Ml the parties. This will have .reference, however, only to the land in section 15.
1. Mrs. Sproul has the right to have the Hawley mortgage first satisfied from the proceeds of the entire tract of said land in section 15, for the deed from Sproul to her is valid to that extent. This right dates from June 12, 1875, the •day when said deed was recorded.
2. The bank comes next in priority. Its right dates from ■September 2, 1875, the day when the transcript of its judgment was filed in the office of the clerk of the district court.
3. Tuthill comes next. Her right dates from September ■4, 1875, the day when the second mortgage to her intestate was recorded.
4. Hoagland comes next. His right dates from October 1, 1875, the day when his judgment was rendered in the district court.
5. Lenker comes next and last. Her right dates from November 11, 1875, the day when her judgment was filed in the office of the clerk of the district court.-
The judgment of the court below will be reversed, and ■cause remanded with the order that judgment be rendered in the case in accordance with this opinion.