Bush v. Bush

• Decision Date: 08 May 1885
• Citation: 6 P. 794,33 Kan. 556
• Court: Kansas Supreme Court
• Parties: E. T. BUSH, JR., A. H. BUSH, JAMES C. BUSH, Trustee, MARY A. BUSH, Guardian, AND H. M. JACKSON, Guardian ad litem of Harry Rigg and Dora Rigg, Minors, v. T. G. BUSH, R. D. HUNTER, AND A. P. BUSH, JR., Partners as T. G. Bush & Co., AND THE PLANTERS AND MERCHANTS MUTUAL INSURANCE COMPANY

6 P. 794

33 Kan. 556

E. T. BUSH, JR., A. H. BUSH, JAMES C. BUSH, Trustee, MARY A. BUSH, Guardian, AND H. M. JACKSON, Guardian ad litem of Harry Rigg and Dora Rigg, Minors, v. T. G. BUSH, R. D. HUNTER, AND A. P. BUSH, JR., Partners as T. G. Bush & Co., AND THE PLANTERS AND MERCHANTS MUTUAL INSURANCE COMPANY

Supreme Court of Kansas

May 8, 1885

Error from Atchison District Court.

ON March 14, 1881, E. T. Bush jr. and A. H. Bush owned 92-224ths of the following-described lands in Atchison county, in this State: The north hale of section 20, township 7, range 19 the southeast quarter of section 20, township 7, range 19 and the east half of section 21, township 7, range 19. They had no interest in any other lands in said Atchison county. On March 14, 1881, said E. T. Bush jr. was guardian of the estate of Harry Q. Rigg and Dora Rigg, minors, and as such guardian had prior to that time loaned to the firm of Bush Yates & Co. (a firm composed of said E. T. Bush jr. and of said A. H. Bush and one L. T. Yates, doing business in Mobile, Alabama) about $ 22,000. At that time said indebtedness was supposed to amount to $ 24,500, but in fact it was very little more than $ 22,000. On March 14, 1881 Bush, Yates & Co. were in failing circumstances, their liabilities being about $ 500,000, and their partnership and individual effects probably one-half of that sum. On March 14, 1881, to secure the said minors, Harry Q. Rigg and Dora Rigg, against loss on account of the funds so used by the firm, said Bush, Yates & Co. executed two notes, which were to become due January 1, 1882. One of said notes was for $ 5,000, a copy of which is as follows:

"$ 5,000. MOBILE, ALABAMA, March 14, 1881.

"On January 1, 1882, after date we promise to pay to the order of E. T. Bush, gd. of Harry and Dora Rigg, five thousand dollars, at Macon, Miss., with 8 per cent. interest from date until paid; value received. BUSH, YATES & CO."

At the same time the said firm executed another promissory note, in all respects conditioned as said $ 5,000 note, except that the amount to be paid thereon was $ 19,540. The promissory note for $ 19,540 was secured upon property in Mississippi of the value of about $ 17,000; the promissory note for $ 5,000 was secured, or attempted to be secured, as follows: E. T. Bush jr. and A. H. Bush executed a trust deed to one James C. Bush, as trustee for said minors, intending in said trust deed to describe and convey the said lands hereinbefore mentioned, but by mistake two quarter-sections of land were incorrectly described in such trust deed, and two other quarter-sections were described therein; but in these quarter-sections neither E. T. Bush jr. nor said A. H. Bush had any interest. Concerning the execution of this trust deed, the finding of the district court is as follows:

"The lands in fact owned by said E. T. Bush sr. in his lifetime, in Atchison county, Kansas, were N. and S.E. 1/4 of section 20, and E. of section 21, being five quarter-sections, all in township 7, of range 19, and neither he nor his said heirs owned any other land in Atchison county, Kansas; and said A. H. Bush and E. T. Bush jr. intended, in executing said trust deed, to pledge the interest which they had in the lands owned by said E. T. Bush sr., in said Atchison county, at the time of his death, and they had no interest in any other lands in said Atchison county; but they did not know the correct description of all of said lands, and they entirely omitted to describe N.E.1/4 section 21, T. 7, R. 19, and N. W. 1/4 section 20, T. 7, R. 19, but instead thereof they described N. E. 1/4 section 21, T. 7, R. 18, and N. W. 1/4 section 20, T. 7, R. 17. Neither said James C. Bush, trustee, nor said W. N. Bogle, knew the correct description of the lands intended to be pledged, but understood that they were the lands which had belonged to said E. T. Bush sr., deceased, and they were willing to accept any security which said firm of Bush, Yates & Co. might choose to give; and the work of securing preferred creditors was done in such haste as not to admit searching for all the papers necessary to insure correctness."

Said trust deed was forwarded to the register of deeds of Atchison county for record, but owing to some defect in the acknowledgment it was returned for correction without being filed or recorded. On March 23d and 24th, 1881, T. G. Bush, R. D. Hunter, and A. P. Bush, partners as T. G. Bush & Co., and the Planters and Merchants Mutual Insurance Company, commenced attachment suits in the district court of Atchison county, in this state, against Bush, Yates & Co., to recover several sums of money, aggregating over $ 16,000, and on said days caused all of said lands to be attached as the property of Bush, Yates & Co. In the attachment suits, on July 12, 1882, judgments were entered and the same made liens on the lands attached, and the lands ordered to be sold in satisfaction thereof; the judgments were rendered upon notice by publication only. A. P. Bush jr., one of the plaintiffs of the firm of T. G. Bush & Co., and acting also as agent for the Planters and Merchants Mutual Insurance Company, before commencing said actions of attachments went to the office of the register of deeds of Atchison county, to ascertain whether there had been any transfer of the Bush lands, or whether they still belonged to the heirs of E. T. Bush, deceased. He learned there was no record of any change in the title, nor of any incumbrances, but the deputy register of deeds informed him that an instrument in the nature of a trust deed had been sent to the office for record, but that it had been returned because not made in conformity with the laws of Kansas. On further inquiry he learned that the instrument was in favor of the Rigg children, and for the sum Of $ 5,000, but this was all that he then could learn in the office about it. Some time after the trust deed of March 14, 1881, had been executed, it was discovered by some person that a mistake had been made in describing two of the said quarter-sections intended to be embraced therein, and on April 25, 1881, A. H. Bush and his wife and said E. T. Bush jr. and his wife executed and acknowledged another trust deed to secure the same indebtedness of $ 5,000, embracing the lands in controversy, and said trust deed was duly filed in the office of the register of deeds on May 4, 1881, at 8:30 o'clock A. M., and thereafter duly recorded in book 56 on page 411 of the records of said office. The trust deed of March 14, 1881, was correctly acknowledged and approved according to the laws of the state of Mississippi, where the same was executed, but was not acknowledged according to the laws of this state, where the lands therein described are situated.

On August 22, 1881, this action was commenced by T. G. Bush & Co. against Bush, Yates & Co., The Planters and Merchants Mutual Insurance Company, Harry Rigg and Dora Rigg, and others, to marshal the liens of various parties and to obtain an order of sale of the lands attached as the property of Bush, Yates & Co. The insurance company answered, admitting all the facts alleged in the petition, and also filed its cross-petition asking that its judgments be adjudged a lien second in priority for the amount thereof. James C. Bush, as trustee in said trust deed for the minor children, filed his answer and cross-petition asking that the claim stated in his trust deed, to the extent of the debt thereby secured, be adjudged a first and prior lien upon all the lands in the county of Atchison, in this state, owned by E. T. Bush jr. and A. H. Bush at the time they executed their trust deed of March 14, 1881; M. A. Bush, as guardian of the minor children, also answered therein, and adopted the cross-petition of the trustee and asked for like relief as guardian of the minors; H. M. Jackson was appointed guardian ad litem for the minors, and answered as such.

On the trial the court found and stated its conclusions of fact and of law, and decreed that T. G. Bush & Co. had a first and prior lien upon the undivided 90-224ths interest of E. T Bush jr. and A. H. Bush in the northeast quarter of section 21, township 7, range 19, and in the northwest quarter of section 20, township 7, range 19, and that their lien upon the other quarter-sections of land was subsequent to the lien of M. A. Bush as guardian and James C. Bush as trustee of Harry Rigg and Dora Rigg; that the Planters and Merchants Mutual Insurance Company had a lien on the undivided 90-224ths interest of said E. T. Bush jr. and A. H. Bush in the northeast quarter of section 21, township 7, range 19, and the northwest quarter of section 20, township 7, range 19, next to the lien of T. G. Bush & Co., but that the lien of the insurance company upon the other quarter-sections of land was also subsequent to the lien of M. A. Bush as guardian and James C. Bush as trustee of Harry Rigg and Dora Rigg, and also subsequent to the lien thereon of T. G. Bush & Co.; that M. A. Bush as guardian of Harry Rigg and Dora Rigg, and James C. Bush as trustee of said Harry Rigg and Dora Rigg, had a first and prior lien upon the undivided 90-224ths interest of said E. T. Bush jr. and A. H. Bush in the northeast quarter of section 20, township 7, range 19, and in the southeast quarter of section 21, township 7, range 19, to secure the payment of the sum of $ 4,600 and interest thereon at 8 per cent. per annum from March 14, 1881, amounting in all to $ 5,630.40; but that their lien upon the other quarter-sections of land in controversy was subsequent to the lien of T. G. Bush & Co., and also subsequent to the lien of the Planters and Merchants Mutual Insurance Company. The lands were adjudged to be sold and the liens thereon to be satisfied in the order of their priority as...