11 P.2d 683 | Kan. | 1932
The opinion of the court ivas delivered by
This is an action to foreclose a mortgage on an undivided one-half interest in a quarter section of land in Rush county. Broadly speaking, the defense was that the mortgage had been paid by a conveyance of the title to the real property, and that plaintiff, in view of his relations to the parties and the transaction, was not in a position to claim ownership of the mortgage and the note thereby secured. The trial court found generally for plaintiff. Defendant has appealed.
The petition alleges that plaintiff resides at Kansas City, Mo., that defendant, formerly Neva J. Yeoman, was divorced and her maiden name restored, and is a nonresident of Kansas; that on March 15, 1918, one Rebecca T. Yeoman executed to one Frances C. Morris a promissory note for $1,500 due in five years, with interest at six per cent per annum, payable semiannually, and to secure the same gave a mortgage on the real property in question, which mortgage was duly recorded March 23, 1918; that thereafter and for value received the payee indorsed the note without recourse and delivered the same to plaintiff, who became and is now the holder thereof, and on March 22, 1923, executed an assignment
The answer alleged in substance that on March 15, 1918, and prior thereto, defendant was unmarried and lived with her mother, a widow, in Kansas City; that both of them had substantial means; that plaintiff was an attorney at law in Kansas City; that for herself and her mother she employed plaintiff as their legal adviser and attorney and paid him fees and commissions therefor; that the Rebecca T. Yeoman named in the petition is plaintiff’s mother; that in March, 1918, defendant was seeking, for her mother, an investment of $1,500 and conferred with plaintiff about it; that plaintiff advised defendant to make the loan to his mother and that it be secured by the mortgage in question; that, acting upon plaintiff’s advice, the loan was made; that after the mortgage was recorded defendant, for her mother, placed it in her safety-deposit box; that plaintiff and defendant were married in January, 1921, and lived together as husband and wife until in January, 1929, when they were separated, and that in May, 1930, defendant procured a divorce from plaintiff, because of his fault, in the circuit court of Jackson county, Missouri; that after her marriage to plaintiff, as well as before that time, plaintiff was employed by defendant and her mother as their attorney and legal adviser in connection with their investments and financial affairs; that the interest was paid on the $1,500 mortgage, except the one due in March, 1923, which interest payment and the note remained past due until about August, 1923, when defendant, acting for her mother, urged plaintiff to have it paid or fixed up; that the amount then due was about $1,600; that thereupon plaintiff, acting as attorney and adviser for defendant and her mother, advised that he had ascertained the reasonable value of the half interest in the land to be about the amount due on the mortgage and proposed to them that his mother, Rebecca T. Yeoman, convey the property to defendant by a deed of general wai'ranty in payment of the amount due on the mortgage; that the proposition was accepted by defendant and her mother on the advice of plaintiff; that plaintiff proceeded to have his mother execute
In his reply plaintiff admitted that he was married to defendant in January, 1921; that they were separated in 1929, and that defendant secured a divorce from him in May,' 1930, and admitted that both before and during his marriage with defendant he had handled investments for her and her mother, and averred that their capital had been substantially increased thereby; alleged that in March, 1918, defendant conferred with him about loaning some money and he advised that his mother would like to obtain a loan of $1,500, and that the loan was made; alleged the reasonable value of the land at that time and ever since is. not less than $75 per acre; that in March, 1923, when the note fell due, defendant’s mother was not willing to renew it and it was agreed between plaintiff’s mother and defendant’s mother that the land should be conveyed to defendant and the mortgage should be assigned to plaintiff, and that this was done.
The parol evidence consisted for the most part of the testimony of plaintiff and defendant. As to some particulars the testimony conflicts. As to these the general finding by the trial court in favor of plaintiff determines those matters in his favor and are not open to review here. The matters concerning which there was no such conflicting evidence, as they appear by the pleadings and the evidence, may be stated briefly as follows: The relations between the parties were at first that of attorney and client. Defendant and her mother had money to invest and investments to be looked after, and employed plaintiff to advise them concerning such investments and to attend to such legal matters as were necessary in relation thereto,
Second, because of his relations with defendant and her mother, and particularly the fact that he prepared, caused to be executed and delivered to defendant the deed conveying the property to her free and clear of all encumbrances. The assignment of the mortgage on which plaintiff relies bears a date nearly six months prior to the date of this deed. It is thoroughly inconsistent for the plaintiff, representing as he was the defendant and her mother in preparing this deed, causing it to be executed and delivered to defendant, to have written into it the warranty against encumbrances above quoted and later contend that at the same time he was the holder of the mortgage now sought to be foreclosed. To make the contention that he now makes is a violation of the trust imposed in him by defendant and her mother. (Yeamans v. James, 27 Kan. 195; Holmes v. Culver, 89 Kan. 698, 133 Pac. 164; Neihart v. Buek, 50 F. 2d 367; 6 C. J. 686, 690, and cases there cited.) The record estops him from claiming under this mortgage as against the defendant. (21 C. J. 1067, and cases there- cited.)' Appellee argues that estoppel cannot be relied upon because it was not pleaded. Though the word was not used the facts constituting the estoppel were pleaded. That is sufficient. Much-is said in the briefs as to some of the evidence having been received in violation of our statute (R. S. 60-2805) relating to communications between husband and wife. The record
From what has been said the judgment of the trial court must be reversed with directions to render judgment for defendant and canceling of record the mortgage sued upon in this action. It is so ordered.