Bowlus v. Winters

• Decision Date: 07 February 1925
• Docket Number: 25,728
• Citation: 233 P. 111,117 Kan. 726
• Parties: DON L. BOWLUS, Executor etc., Appellee, v. WM. F. WINTERS, Appellant
• Court: Kansas Supreme Court

233 P. 111

117 Kan. 726

DON L. BOWLUS, Executor etc., Appellee, v. WM. F. WINTERS, Appellant

No. 25,728

Supreme Court of Kansas

February 7, 1925

Decided January, 1925.

Appeal from Edwards district court; ROSCOE H. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROBATE COURT--Jurisdiction to Order Executor to Sell Mortgaged Realty to Satisfy Mortgage Thereon--Mortgage Indebtedness Not Exhibited to Court Within Two Years. Where a probate court has jurisdiction of a testator's estate, it likewise has jurisdiction, on petition of the executor, to order the sale of realty belonging to such estate to satisfy an indebtedness secured by a mortgage thereon where the personal assets are insufficient to pay it, notwithstanding the indebtedness was not exhibited within two years to the probate court as a claim for allowance against the general estate of the testator.

2. SAME--Specific Performance of Real-estate Contract Properly Awarded. Record of a decree of specific performance in favor of an executor and against a defendant who had contracted to purchase certain real estate sold on order of the probate court to satisfy a testator's mortgage indebtedness examined, and no error discerned therein.

3. SAME--Sufficient Title and Conveyance Made by Executor. The title and conveyance tendered by the executor were not of such dubious character as to be likely to provoke litigation nor did any such infirmity inhere in them as would justify a court of equity in denying specific performance.

Carl Van Riper, of Dodge City, and A. L. Moffat, of Kinsley, for the appellant.

W. E. Broadie, of Kinsley, for the appellee.

Dawson, J. Burch, Mason, Harvey, JJ., dissenting.

OPINION

DAWSON, J.:

This was an action to enforce a contract for the sale of 160 acres of land.

The property had belonged to one Sallie A. Bowlus, who died testate in 1916. By her will she directed that all her just debts should be paid out of her estate, and devised one-third of the annual crops raised on the land in question to a daughter, Maud, for her lifetime, and provided that if Maud should die before her two children became twenty-four years of age they should receive one-fourth of the crops until they attained that age, after which time and after the death of Maud, the land was to be divided among four persons--two sons, another daughter, and a stepson. A son, Don L. Bowlus, was named as executor.

The will was executed on November 24, 1916, and the testatrix died two days later. Some months prior thereto, on April 19, 1916, she had borrowed $ 1,500 from the Warren Mortgage Company, and had given a mortgage on the property to secure its payment, with interest, in seven years after date.

The personal estate of Sallie, less some household goods specifically bequeathed by the will, was valued at $ 259. As the time of maturity of the mortgage drew near, the executor filed a petition in the probate court, alleging--

"That the amount of debts due from the said Sallie A. Bowlus, deceased, as nearly as they can be ascertained, is sixteen hundred and seventy-five ($ 1,675) dollars.

"That the amount of charges of administration of said estate is about one hundred dollars.

"That the value of the personal estate and effects of the said Sallie A. Bowlus, deceased, is two hundred and fifty-nine ($ 259) dollars."

The petition in the probate court contained pertinent recitals, and the prayer was for an order to sell the property at private sale and to use the proceeds to pay "the debts of said real estate."

The record shows compliance with the requisite statutory proceedings to sell the property, including the order of the probate court directing its sale. Pursuant thereto the executor contracted to sell the property to defendant for $ 7,000, less the mortgage of $ 1,500 and interest due thereon and the taxes for the years 1921 and 1922, all of which the purchaser assumed and agreed to pay. The contract also provided:

"Party of first part [executor] agrees to furnish second party with an abstract of title within ten days showing said land free and clear except the said mortgage and taxes. If any other liens or defects appear in said title first party is to have a reasonable time to correct the same. . . . Cancelled note and mortgage due Warren Mortgage Company and tax receipts 1921 and 1922 to be filed with probate court, Kinsley, Kansas, for receipt. In witness whereof we have hereunto set our hands this 24th day of May, 1923.

"DON L. BOWLUS, party of first part,

"WM. F. WINTERS, party of second part."

The contract of sale was approved by the probate court. An abstract of title was submitted to defendant, and his attorney made certain requirements thereon which eventually were satisfied (unless as hereinafter noted), and an executor's deed was tendered. This was declined, and this action followed.

About the same time foreclosure proceedings to subject the property to the payment of the mortgage indebtedness were instituted in a separate action, which has perhaps little to do with the case at bar.

Defendant grounded his main defense to the plaintiff's action on the proposition that no debts or claims were presented to the probate court for allowance within two years (R. S. 22-702), which would justify the selling of the property; that the files of that court and the petition praying for an order to sell the real estate disclosed personal assets of $ 259, and that there were no exhibited claims unpaid in the probate court, and none other affecting the estate cognizable by the probate court except the implied claim of the executor for compensation, about $ 100; that the duties of the executor had been completed, and nothing remained to be done concerning the executorship except that he be paid and discharged; and that the executor had no power to sell the property nor had the probate court power to authorize or confirm the sale of it.

The trial court made extended findings of fact, some of which read:

"3. The assets received by Don L. Bowlus as executor of the estate of Sarah A. Bowlus, deceased, were sufficient to pay all claims legally allowed against said estate, together with the probable cost of administration thereof, and all of such claims were paid and such assets received by the executor within two years of the date of his appointment. No claim by the executor for his services or for other costs of administration had been filed or allowed prior to May 19th, 1922. . . .

"5. That the mortgage note heretofore referred to on said real property was included in the amount set out in the petition of said executor to sell said real estate in his statement of the amount of debts due from said estate, and that the holder of said mortgage note has never at any time filed a claim therefore in the probate court of Edwards county, Kansas, against the estate of Sarah A. Bowlus, deceased. Since this case was tried and after judgment had been rendered in favor of the defendant, and while the matter was pending on a motion for a new trial, an action was commenced in the district court of Pawnee county, Kansas, for the purpose of foreclosing the mortgage hereinbefore mentioned.

"6. The abstract of title submitted by the plaintiff to the defendant did not contain any statement of the claims allowed or paid against the estate of Sarah A. Bowlus, deceased.

"7. That the parties to this action by their course of dealings and negotiations rendered the time of the performance of the contract immaterial.

"8. Prior to the time of the filing of the petition the plaintiff had tendered an executor's deed for said land and furnished an abstract of title and tendered performance of his contract, which tender had been refused by the defendant.

"CONCLUSIONS OF LAW.

"The court concluded as a matter of law that specific performance of the contract for the sale and purchase of said real estate between the plaintiff and the defendant should be decreed."

Judgment was entered in favor of plaintiff. Defendant appeals, contending that the probate court proceedings were void, and that the executor's deed would afford him no protection against the heirs and devisees of Sallie A. Bowlus, and that no such title was tendered him as he should be required to accept and pay for under the equitable principles governing specific performance.

It is settled law that within its jurisdiction a judgment of a probate court unappealed from is as binding as that of a court of general jurisdiction. (Lake v. Hathaway, 75 Kan. 391, 89 P. 666.) Appellant contends that the probate court did not have jurisdiction to authorize a sale of the property to satisfy the mortgage indebtedness, because there was no timely presentation of a claim therefor in that court. In Bank v. Grisham, 105 Kan. 460, 473, 185 P. 54, it was said:

"It is also urged that the debt was not exhibited as a demand against the estate. That formality is not required of a mortgagee, if he is content to look to his security alone for payment, and not to the general assets. (Andrews v. Morse, 51 Kan. 30, 32 P. 640; Linn v. Ziegler, 68 Kan. 528, 75 P. 489; Smith v. Kibbe, 104 Kan. 159, 165, 178 P. 427. See, also, Robertson v. Tarry, 83 Kan. 716, 112 P. 603.)"

So the real question is whether the probate court had...