119 Kan. 294 | Kan. | 1925
The opinion of the court was delivered by
The plaintiffs filed a creditors’ bill to subject certain land to the payment of debts of Emily Diamond, deceased. The defense was that the land was a homestead. The plaintiffs prevailed, and defendants Fred H. and- Anna Diamond appeal.
The facts as told by -the court’s findings are substantially as follows:
H. P. Diamond and his wife, Emily Diamond, Jewell county pioneers, homesteaded the northeast quarter of section 24, township 2, range 8, on which they lived during their married life until they moved to Mankato, in 1906. They were frugal, hard-working and
At the time of the death of Emily Diamond she left no personal property and had practically none at the time she executed her last will, and the real estate described in the petition was listed by said executor in his inventory as the property of the estate of Emily Diamond. There were allowed in the probate court certain claims which were enumerated. The court finds The State Exchange Bank of Mankato is the owner and holder of a mortgage on the premises in question in the sum of $2,000, which is a first lien upon said premises. The mortgage in the sum of $2,300 executed by Fred H. Diamond and Anna Diamond to the Farmers National Bank of
The court concluded that the creditors were entitled to have the land subjected to the payment of their claims. Judgment was rendered on the claims as classified and allowed by the probate court. The State Exchange Bank, by reason of its mortgage, was found to have a first lien on the land. The judgment of the district court was ordered filed in the probate court and that court directed to proceed with the settlement.
The defendants contend, chiefly, that the court erred in concluding that the land was not exempt as a homestead from the claims of the creditors of Emily Diamond; that the court erred in not allowing the statutory period of redemption on foreclosure of the mortgage of the State Exchange Bank, and in allowing attorneys’ fees and taxing them as costs.
The plaintiffs argue that the trial court’s findings are supported by substantial evidence; that the land in question was not, at the time of the death of H. P. Diamond, and the death of his widow Emily Diamond, the homestead of either, and did not become the homestead of the appellant, but that, regardless of whether it was
Fred Diamond and his wife, in a separate answer, alleged that at the time of their marriage in 1906, and the establishment of their home on the land in question, the father gave them the land on condition that they care for him and his wife Emily during their lifetime. Later they amended their pleadings, setting up a claim for compensation for services performed. The evidence showed that the father in his will devised the land to his wife Emily and made a bequest of $100 to Fred, which was acknowledged. On her part, the mother Emily devised the land in question to Fred after the payment of her debts. It would serve no useful purpose to detail the evidence. Considering all the circumstances, we are unable to say that the court erred in concluding that the land in question was not the homestead and as such exempt from the debts of Emily Diamond.
The court found that The State Exchange Bank was entitled to judgment on its note for $2,915.20; that its mortgage be foreclosed and the lands ordered sold to satisfy the judgment, but it ordered that a certified copy of the journal entry of judgment be transmitted to the probate court and that that court proceed with the settlement of the estate.
We are of the opinion that since the State Exchange Bank had a prior lien on the land by virtue of its mortgage, it was entitled to have the land sold in accordance with the decree of foreclosure. This should have been done under authority of the district court. It was proper for the other claims to be administered and settled by the probate court as was directed.
We are of the opinion, also, that the appellants are entitled to the statutory period of redemption. In the recent case of In re Estate of Wood, 118 Kan. 548, 555, 235 Pac. 864, it was said:
“The fact that claims for funeral expenses and costs of administration may in some cases go unpaid while the heirs of the decedent enjoy the rents and profits of land which he had owned and which since his death has been sold under a mortgage foreclosure is not a conclusive reason for holding the right of redemption to be subject to their payment. The policy of the law which creates the right of redemption has in other situations the effect of preventing the payment of just debts to the advantage of the debtor. A strong argu*299 ment in favor of holding the right of redemption subject to sale to pay the decedent’s debts on order of the probate court is that if no foreclosure had been had the probate court could have directed the sale of the land subject to the mortgage lien, and it seems incongruous that the right of the creditors to look for payment to the value of the land in excess of the mortgage should depend upon the course chosen by the mortgagee. We regard it as a sufficient answer to this contention to say that in this respect the creditors are in much the same situation in which they would be placed'by the sale of the land on foreclosure during the life of the mortgagor. In that case they could not interfere with the mortgagor’s possession for eighteen months, nor with his right to redeem. If no redemption were made the possibility of their appropriating the land to the payment of their claims would be gone forever. If the mortgagor should redeem they seemingly might then (unless they had become lien holders, having a deferred right to redeem) enforce payment by execution. (R. S. 60-3460.) With the death of the mortgagor in the present case his heir became the owner of the land subject to the mortgage and subject also1 to the right of the creditors to look to it for the payment of their claims. If the creditors had been actual lien holders they could not, merely by virtue of their lien, have subjected to sale the owner’s right of occupancy and redemption. Their sole remedy in that aspect would be to redeem if the owner did not. We see no such consequent disparity of relief, nor any such inequity, as to forbid the liberal interpretation of the law which has been suggested, and we hold that the probate court had no power to order the sale of the appellant’s right of redemption or his right to occupy the land during the redemption period.” (p. 550.)
The court made an allowance for attorneys’ fees. We are of opinion that there was no- authority for the taxing of attorneys’ fees as costs in the case in the district court.
The judgment will be modified in accordance with the views herein expressed, and as so modified will be affirmed.