85 Kan. 713 | Kan. | 1911
U. S. Grant Woodman brought ejectment for a business block against J. A. Davison. Judgment was rendered for the defendant and the plaintiff appeals. Woodman claims directly under the will of his father, and upon the theory that the property was devised to him subject to a right to its use for twenty years by the executors. Davison claims under a receiver’s sale made to satisfy indebtedness created by the executors. The property was owned and occupied as a bank building by Wm. C. Woodman,'the plaintiff’s father, at the time of his death, in 1888. His will, after disposing of his homestead and the proceeds of an insurance policy, made several specific bequests, and then ■continued:
“Subject to the foregoing provisions, and the discharge of the foregoing specific bequests, I give and bequeath all my property, real, personal and mixed wherever situated, to my executors hereinafter named, to be by them held, controlled, managed and disposed of as hereinafter provided.
“The whole of said property, except said homestead, shall be held and considered as the active capital and available resources of the First Arkansas Valley Bank of William C. Woodman & Son, for and during the period of twenty years after my decease. The banking and other business of the said First Arkansas Valley Bank shall be conducted and continued on by my said executors for said period of twenty years after my decease, which business shall be conducted in the name of William C. Woodman & Son. Said executors shall have power . ... generally to do any act or thing in and about the management of said estate or said business, which I would be competent to do if in life; provided no sale or mortgage of lot 33 on Main street in the city of Wichita, Sedgwick county, Kansas [the property in controversy], or the bank building thereon, or the furniture and fixtures used therein, during said term of twenty years.”
The division of the estate at the end of twenty years
“There shall be given to my son, U. S. Grant Woodman, lot 83 on Main street in the city of Wichita, Sedgwick county, Kansas, and the bank building thereon, and all the furniture, fixtures and appliances therein used in connection with the said banking business, as .his property absolutely.”
All special legacies excepting one, all debts of the testator, and all expenses of the administration were fully paid. The banking business was continued, under the old name, by the executors, U. S. Grant Woodman being one of them. In 1891 the bank became insolvent and suspended payment. The executors were •removed and U. S. Grant Woodman and another were •appointed administrators with the will annexed. An action was brought by creditors to wind up the business. Woodman was made a defendant both as administrator and individually. The petition set out the will at length, and asked to have the assets of the trust estate applied to the payment of the indebtedness. It ■did not attempt to describe the property in detail, but •contained an allegation that all the property in the possession of the administrators belonged to and was a part of the trust estate. It also alleged that Woodman and others claimed an interest in the trust estate, but that their interest'was inferior to the equitable lien of creditors. A receiver was appointed to take charge of all the property belonging to, “or in any way appertaining to,” the estate of the bank. Woodman filed an answer in which he made a personal claim against the trust estate. In a reply the plaintiff alleged that Woodman was personally liable for the debt sued on. A judgment was rendered which in express terms adjudged that Woodman was liáble upon the indebtedness due to the plaintiff and to other creditors, but provided that no personal judgment should be rendered against him. A provision was added that such failure
Woodman claims that the executors and administrators had no interest in the bank building beyond the-right to use it for twenty years; that the proceedings in the action in which the receiver was appointed had reference only to the trust estate — to the property belonging to the banking business; that the receiver’s deed passed title only to what remained of the estate for twenty years; and that at the expiration of that period he was entitled to the possession of the bank building as its absolute owner.
It is true that in the pleadings, orders and judgments in the action in which the sale was made, the property sought to be reached was described in general terms as the trust property, or as the estate of W. C. Woodman & Son, or of the First Arkansas Valley Bank. But in a schedule of the property in his hands which he filed by order of the court, the receiver listed lot 33, without any indication that he claimed less than a full title. And ip his report of the sale he specifically stated that he had sold this lot — not a limited estate in it, but the property itself. The confirmation of its sale must be interpreted in connection with the receiver’s report, and amounts to a decree barring all claims of any of the defendants, including Woodman, to the real estate sold. The record therefore presents a complete bar to Woodman’s claim asserted in the present action. The fact that in the prior action the question of his reversionary interest does not appear to have been dis
In Chellis v. Coble, 37 Kan. 558, 15 Pac. 505, a bankrupt scheduled real estate which he did not own, and it was held that the sale and conveyance of the property by the assignee under the order of the court did not cut off the right of the real owner, although he had made proof of a claim against the bankrupt and filed it in the same proceeding, afterwards accepting the securities already held in satisfaction of his demand. The court said:
“Counsel insist that the law implies a knowledge [on the part of the true owner] of whatever took place in the bankrupt proceedings. That is true so far as the matters connected with the transactions in which he*718 was interested or was bound to be interested by virtue of his claim against the estate, and no further.” (p. 566.)
In Wilkins v. Tourtellott, 28 Kan. 825, an assignee in bankruptcy scheduled, sold and conveyed real estate which did not belong to the bankrupt, and it was held that the proceedings did not amount to an adjudication against the bankrupt that he was the owner. In each of these cases it was suggested that if the issue of the ownership had been presented the determination of the court would have been final. Upon the grounds already stated we think'that in the case now under consideration the issue of ownership was presented. The action was brought in a court of general jurisdiction to declare a lien upon all the property of the trust estate, or of the banking business. The petition alleged that Woodman claimed an interest in this property, which was inferior to that of the plaintiff, and that all of the property in the hands of the administrators (which included lot 83) belonged to the estate. These allegations raised a question as to what property was liable for the indebtedness sued on, and as to Woodman’s interest in the property sought to be applied to its payment. He was bound to be interested in these matters if he claimed to have title to lot 33, and he-.was charged with notice of all the proceedings with reference thereto, and concluded by the judgment in which they culminated.
If it were clear that all parties had in fact conceded that Woodman owned the property, subject to the twenty-year estate, that there was no purpose to reach it or to affect his title, and that the entry of a judgment purporting to cut off his interest resulted from inadvertence, it might be possible, in furtherance of justice, so to construe the record that the judgment might be regarded as ineffective because lying wholly outside of the issues in the case, as was done in Grille v. Emmons, 58 Kan. 118, 48 Pac. 569. But that is not
The judgment is affirmed.