Crippen v. Chappel

• Decision Date: 09 July 1886
• Citation: 35 Kan. 495,11 P. 453
• Parties: HENRY C. CRIPPEN, et al., v. JULIA A. CHAPEL, et al
• Court: Kansas Supreme Court

11 P. 453

35 Kan. 495

HENRY C. CRIPPEN, et al., v. JULIA A. CHAPEL, et al

Supreme Court of Kansas

July 9, 1886

Error from Washington District Court.

ACTION brought by Chappel against Crippen, Lawrence & Co., and others, for the partition of certain real estate. To the answer of defendants, Crippen, Lawrence & Co., the plaintiff demurred on the ground that it does not state facts sufficient to constitute any defense to her petition. The demurrer was sustained at the November Term, 1884. This ruling said defendants bring here for review. The opinion states the facts.

Judgment reversed and cause remanded.

Garver & Bond, for plaintiffs in error.

Omar Powell, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action for the partition of real estate, brought in the district court of Washington county, by Julia A. Chappel against Henry C. Crippen and H. Francis Crippen, partners as Crippen, Lawrence & Co., and others. The petition alleged, among other things, that the plaintiff and the defendants other than Crippen, Lawrence & Co. were joint owners of the property in question, and that Crippen Lawrence & Co. claimed to have some interest in the premises; and the plaintiff prayed for partition between herself and the defendants other than Crippen, Lawrence &amp Co., and prayed that the claim of Crippen, Lawrence & Co. be adjudged to be null and void. For answer to this petition, Crippen, Lawrence & Co. set forth, among other things, that the land in question had previously belonged to Philemon Chappel; that on January 11, 1883, he died, leaving as his heirs Julia A. Chappel, his widow, and the co-defendants of Crippen, Lawrence & Co.; that at that time the property in question was incumbered by a mortgage lien to secure the payment of a debt of $ 500 and interest, due July 1, 1883, to Joseph P. Drewett, for which debt the intestate was personally liable. On March 16, 1883, I. H. Chase was duly appointed administrator of Chappel's estate, and on July 2, 1883, he obtained an order from the probate court authorizing and directing him as such administrator to re-mortgage the property for the purpose of raising money to pay the aforesaid debt and to discharge the aforesaid mortgage. Pursuant to such order the administrator applied to Crippen, Lawrence & Co. for and obtained from them a loan of $ 500 for the purpose of paying off and discharging said debt and mortgage to Drewett, and for this loan the administrator gave his note and mortgage on the property in question, both of which were executed by him as administrator. On the faith of this last-mentioned note and mortgage, and of having as security for the said loan a first lien upon the land in question, Crippen, Lawrence & Co. advanced said sum of $ 500 by paying the same to Drewett in satisfaction of his claim and mortgage lien. Upon the foregoing facts, the defendants Crippen, Lawrence & Co. prayed that they be adjudged to have a valid lien on the property in question for said sum of $ 500 and interest, by virtue of the mortgage executed to them by the administrator; or, if that could not be done, then that they be subrogated to the lien of the Drewett mortgage. To this answer the plaintiff interposed a demurrer, on the ground that the answer did not state facts sufficient to constitute any defense to her petition, which demurrer was sustained by the court. The defendants Crippen, Lawrence & Co. excepted, and to reverse the ruling of the district court in sustaining such demurrer they bring the case to this court, making the plaintiff below and all the defendants below aside from themselves defendants in error.

It seems to be admitted that the mortgage executed by the administrator to Crippen, Lawrence & Co. is void, and void, not because of any irregularity in its execution, but void because administrators in this state have no power or authority under the law to execute mortgages; and there is no claim in this case that the deceased had executed any will giving the administrator any such authority. It would therefore seem to be admitted that the mistake of the administrator and of Crippen, Lawrence & Co. in executing and receiving the aforesaid mortgage was a mistake of law and not one of fact. It also seems to be admitted by the parties that the only question presented to this court for consideration is whether the defendants Crippen, Lawrence & Co. can be subrogated to the rights of Drewett under his mortgage.

We shall assume that the mortgage executed by the administrator to Crippen, Lawrence & Co. is absolutely void, because of a want of power in the administrator to execute the same, ( Black v. Dressell's Heirs, 20 Kan. 153,) and that it is worthless for all purposes except merely for the purpose of showing the understandings and the intentions of the administrator and Crippen, Lawrence & Co. when the money was loaned, and when the Drewett debt and mortgage were paid and satisfied. Nor is mere any express authority given by the statutes of Kansas to administrators to borrow money on account of their estates. It is the duty however, of administrators to pay all debts against their estates, whether such debts are secured by mortgages or other securities, or not secured at all; and for this purpose the administrator may first sell all the personal property of the estate not exempt, if necessary, and may then sell all the real estate of the estate, not exempt, if necessary. In other words, all the estate of a deceased person, real and personal, except certain exemptions which have nothing to do with this case, is pledged by law for the payment of the decedent's debts, and the administrator may use the decedent's estate for that purpose. The question, then, to be considered in this case is whether, when a debt is due against the estate of a deceased person, and such debt is secured by a mortgage on the real estate of such deceased person, and the administrator whose duty it is to pay such debt borrows the money therefor from a third person with the agreement and understanding between them that such third person shall be reimbursed from the assets of the estate, and that such third person shall be secured by a mortgage lien upon the previously-mortgaged property of such estate, and for that purpose a mortgage on the previously-mortgaged property is executed by the administrator to such third person, which mortgage is void because of a want of power in the administrator to execute the same, but in pursuance of such mortgage and of the agreement and understanding between the administrator and the loaner of the money, the money is loaned and is paid to the original mortgagee, may such third person be then subrogated to the rights of the original mortgagee, and thereby obtain substantially what he was to obtain by virtue of the agreement and understanding between himself and the...