60 Kan. 34 | Kan. | 1898
The opinion of the court was delivered by
To discuss at length all the assignments of error argued in the brief, and answer fully all the contentions of counsel for the plaintiff in error wmuld extend this opinion to an unwarranted length. Such of the assignments only as are deemed most important will be mentioned. The first is that the court erred in refusing to require the plaintiff separately to state and number her causes of action. It is claimed that five separate causes of action were included in the petition, as follows: (1) For interest paid; (2) for rents and profits of the land ; (3) to have the Boss contract assigned to plaintiff; (4) to recover the other quarter-section of land ; (5) to cancel the judgment entered in the foreclosure case. Most of these supposed different causes of action are in no sense separate and distinct. The recovery of interest paid and of rents and profits of the land have somewhat the appearance of severable causes of action, yet these are directly connected with the single main transaction. The substance of the plaintiff’s case was that she had given into the possession of the' bank by way of mortgage her property; that through foreclosure proceedings the bank had obtained the legal title to
The demurrer to the amended petition was rightly overruled. Boss, Miller, Woodrum or any of the other judgment creditors Avas not a necessary party to the action. There Avas no impropriety in joining the several causes of action. The petition stated facts sufficient to constitute a cause of action. The action was not based on any parol trust agreement, void under the statute of frauds, but was one arising by implication of law from the transactions of the parties. Many of the averments of the petition, and some of those contained in the reply, were unnecessary and might properly have been stricken out as surplusage, as asked in the defendant’s motion, but they appear to us to have been harmless. The question of prime importance in the case was whether the two notes executed by the plaintiff to the bank and secured by mortgage on her land represented an indebtedness which she owed to the bank for the land itself which she had bought from the bank, or whether, as claimed by her, these notes were delivered to and held by the bank solely as collateral security to debts of her husband which were primarily evidenced by other notes executed by him. If her claims were true, on payment of her husband’s debt from his own funds, the bank would be by implication and intendment of law a trustee liable to account for all securities belonging
The objection to the petition based on the conclusiveness of the judgment in the foreclosure case as a final adjxxdication of the rights of the parties at first blush appears somewhat forcefxxl, but oix closer examination it will appear that at the time of the fox’eclosure, which was prior to the payment by J. G. Woodrxxm of his indebtedness to the bank, the plaintiff had xxo defense which she could have maintained in that case. The notes executed by her were due by their terms. The debt of her husband was unpaid. The bank had a right to x'esort to this collateral security for the payment of the principal debt and to a judgment foreclosing its mortgage. It also had the right to proceed to sell the mortgaged land. It had the right to appropriate the proceeds of the sale to the payxnexit of J. G. Woodrum’s debt. This, however, it did not do. Having bid in the land it saw fit to retain the land
Much stress is laid on the statements in the petition with reference to the foreclosure judgment cutting off the liens of general judgment creditors. It is contended that the agreement with reference to this foreclosure, as set up in the petition, shows that a fraud on the rights of other creditors was intended, and that the judgment finally rendered in this case returns to the plaintiff her land freed and discharged from the claims of creditors, which constituted incumbrances on it prior to the foreclosure. This contention is without substance. The plaintiff having been the owner of the equitable title to the land from the time of the execution of the mortgage to the entry of .the decree in this case, all judgments against her were liens on that equitable interest, and when, by the judgment in this case, the legal title was restored to her, the creditors were benefited rather than injured by having the evidence of her title to the land disclosed and made of record in such form that they could resort to it for the payment of their debts, freed and cleared from the apparent title of the bank.
The allegations of error based on the refusal of the court to require the plaintiff to elect whether she would stand on the alleged contract or the claim of fraud,
After all, the substance of the controversy was as to whether the $1000 note and the $600 note represented a separate and distinct indebtedness which the bank had a right to collect or were given merely as collateral security to a debt of J. G. "Woodrum’s. This controversy was resolved by the jury on ample testimony in favor of the plaintiff. This conclusively settles the fundamental difference between the parties-, and all else follows as a legal consequence of this finding taken in connection with the further finding that J. G. Woodrum had fully paid all his debt to the bank from his own funds. The bank still held Mrs. Wood-rum’s property, and she was entitled to have it restored to her, with the rents and profits resulting from its possession. She was also entitled to have the money judgment which had been entered against her in the foreclosure suit canceled, not on the theory that it was wrongfully or erroneously rendered in the first instance, but that the payment of her husband’s debt operated as a payment of this judgment, which stood merely as security for-it.
No material error appearing in the record the judgment is affirmed.