Dahn's Estate, In re, 45525

Decision Date24 January 1970
Docket NumberNo. 45525,45525
Citation204 Kan. 535,464 P.2d 238
PartiesIn the Matter of the ESTATE of Louis P. DAHN, Deceased. Mamie L. DAHN, Appellant, v. Bill MURRAY, Executor, Appellee. W. W. TRAILER SALES, INC., Plaintiff and Appellee, v. Mamie L. DAHN, Defendant and Third-Party-Plaintiff, Appellant, v. The FOURTH NATIONAL BANK & TRUST COMPANY, WICHITA, Third-Party-Defendant and Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Under the law of this state, an action may be brought against any one or more of those persons who are jointly liable on the same obligation.

2. The fact that one of two joint obligors is deceased and no claim has been filed against or action taken to collect from his estate, does not extinguish the liability of the surviving joint obligor nor does it bar proceedings to recover from such survivor.

3. Under the provisions of K.S.A. 59-401, a house trailer occupied as a residence by a decedent and members of his family at the date of decedent's death is exempt, as a homestead, from distribution under the law of this state and from payment of the decedent's debts, except that it shall not be exempt from sale for payment of taxes or for payment of obligations contracted for its purchase.

4. A homestead interest may be impressed only upon whatever interest or title a decedent may have had in the property claimed as a homestead, whether that title or interest be legal or equitable.

5. Where the existence of a homestead right in property is dependent upon the decedent's equitable interest under a contract of purchase, the homestead right ceases with the extinguishment of the decedent's equitable interest in such property.

6. Where a surviving spouse having a homestead interest in property being purchased under a contract of sale requiring regular periodic payments on the purchase price, fails to make such payments and turns the property back to the seller, an abandonment of the property results which extinguishes the homestead interest therein, as well.

7. Under the terms of K.S.A. 59-1303, a secured creditor of a deceased debtor has two options: he may file a demand against the estate of the decedent and have the same allowed in full, provided he surrenders the security, or he may exhaust his security and make claim for any deficiency remaining due.

8. Summary judgment should not be entered in any case so long as there remains a disputed issue of material fact even though the trial court may believe that one or the other of the parties cannot prevail upon trial.

9. Where one agrees to do or does an act which he is already bound to do, his agreement is not supported by good and sufficient consideration.

10. The record is examined and for reasons appearing in the opinion it is held the trial court did not err (1) in refusing to require the executor of an estate to pay, out of general estate assets, an encumbrance existing against a house trailer in which the widow claimed a homestead interest, and (2) in summarily dismissing a cross petition and third party petition, both predicated on an alleged agreement unsupported by consideration.

Ralph E. Gilchrist, Wichita, argued the cause, and Carl L. Buck, Stephen K. Lester, and Brian J. Moline, Wichita, and Eldon L. Meigs, Pratt, were with him on the brief for appellant.

Jerry G. Elliott, Wichita, argued the cause, and Robert C. Foulston, Robert M. Siefkin, George B. Powers, John F. Eberhardt, Stuart R. Carter, Malcolm Miller, Robert N. Partridge, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel L. Stout, Benjamin C. Langel, Phillip S. Frick, John E. Foulston, Stanley G. Andeel, John E. Neal, Frederick L. Haag and Richard D. Ewy, Wichita, were with him on the brief for W. W. Trailer Sales, Inc.

John D. Megaffin, Pratt, argued the cause, and M. C. Bucklin, Pratt, was with him on the brief for The Fourth Nat. Bank & Trust Co.

Bill Murray, Pratt, argued the cause, and B. V. Hampton and Bill Hampton, Jr., Pratt, were with him on the brief for the Executor of the Estate of Louis P. Dahn, deceased.

FONTRON, Justice.

This appeal is concerned with two lawsuits: one is a claim by Mamie L. Dahn against the estate of her deceased husband, Louis P. Dahn; the other is an action filed in district court by W. W. Trailer Sales, Inc. against Mamie Dahn seeking to recover a deficiency remaining due after public sale of a mobile home purchased under a conditional sales contract. In the latter action Mamie filed a cross petition against the trailer company and a third party petition against the Fourth National Bank of Wichita, seeking damages allegedly resulting from a breach of contract. Mamie has appealed from the judgment entered in each action and the two appeals have been consolidated in this court. The facts are somewhat complicated.

In the year 1959, Louis P. Dahn and his then wife, Iva, executed a joint and mutual will, contractual in nature. After Iva passed away, Louis married Mamie, the present appellant. On March 19, 1965, Louis and Mamie purchased a Skyline Mobile Home from W. W. Trailer Sales, Inc., on a conditional sale installment contract calling for monthly payments and containing the usual small print provisions.

Louis died May 6, 1965, leaving Mamie in possession of the trailer house (or mobile home in more polite parlance) with a time balance of $7,951.56 remaining due thereon. By this time the sales contract had been assigned to the Fourth National Bank of Wichita, with recourse. Mrs. Dahn found herself unable to meet the monthly payments and after some correspondence in which she advised the bank she was unable to meet the payments and would have to give up the trailer, the bank had the trailer picked up in McPherson, Kansas.

Subsequently the bank turned the trailer house to W. W. Trailer Sales, Inc. which then paid the bank in full pursuant to its obligation under the recourse assignment. On May 30, 1966, the trailer home was sold at public sale, after due notice of sale had been given. After the allowance of all credits a deficiency of $1,551.42 remained.

With this barebone recital of facts we proceed to the nub of these two lawsuits. On November 24, 1965, Mamie filed a petition in her late husband's estate, asking that she be adjudged owner of the trailer home that the estate be required to pay any lien or encumbrance against it, that the bank be enjoined from disposing of the same until all rights were determined and for such other relief as might be equitable. On January 24, 1966, the bank filed a claim against the Louis Dahn estate for $7,727.47 asking that it be allowed to sell the trailer and apply the proceeds to payment of its claim.

Neither claim against the estate was heard until June 13, 1966, at which time the trailer home had been sold. The probate court, after a full hearing, ruled that W. W. Trailer Sales, Inc. be made a party to the probate proceedings, approved the sale of the mobile home and determined that Mamie had no homestead rights therein. At this time also the court directed the bank to file an amended claim reducing the amount thereof to reflect credit of the sale proceeds and, in addition, directed the executor to sell the estate assets and hold the proceeds pending further order. Mrs. Dahn thereupon appealed to district court.

Some time after the trailer was sold, and we are uncertain of the exact time, since dates of filing are not set out in the record as required by Rule 6(g), W. W. Trailer Sales, Inc. commenced prodeedings in district court against Mrs. Dahn to recover the $1,551.42 deficiency. To that action Mamie responded by denying liability and by filing a cross petition against the trailer company and a third party petition against the bank, in both of which she alleged in substance as follows: that in the latter part of 1965 she and the Fourth National Bank orally agreed the bank would take possession of the trailer house and hold it until it should be determined what amount would be due the bank after recovery was had from the Louis Dahn estate; that she (Mamie) delivered the trailer in accordance with such agreement and the bank thereafter filed a claim against the estate; that thereafter, pursuant to some scheme between them, the bank turned the trailer to W. W. Trailer Sales, Inc. which in turn sold the trailer, thus depriving her of her property. Judgment was asked against both the bank and the trailer company for the value of the trailer, for loss of its use and for punitive damages.

On November 10, 1967, a pretrial conference was held in district court covering both cases, and at this time W. W. Trailer Sales, Inc., was given judgment against Mamie L. Dahn for $1,551.42, this amount being the deficiency existing after the trailer was sold. At the same time, Mamie's cross petition against the trailer company and her third party petition against the bank were both dismissed.

As to the probate appeal, the trial court found: (1) That the amount due on the bank's claim had been paid by the trailer company and the bank's claim against the estate had thus been extinguished; (2) that Mrs. Dahn had a homestead right in the mobile home which was limited by and subject to the interest of the bank and trailer company; (3) that the bank and trailer company had exercised their right to repossess and sell the mobile home, leaving a deficiency of $1,551.42. Judgment was thereupon entered dismissing the bank's claim against the estate (the trailer company never having filed one) and allowing Mamie a claim against the estate in the sum of $775.71, this being one-half the judgment recovered against her by the trailer company. As we have previously indicated, Mrs. Dahn has appealed from both judgments.

Mrs. Dahn phrases her first point as follows:

'The debt upon which W. W. Trailer Sales, Inc. brought suit is the primary debt and obligation of Louis P. Dahn, deceased.'

Since both Louis and Mamie signed the conditional sales...

To continue reading

Request your trial
13 cases
  • BANK v. BOLANDER, 94
    • United States
    • Kansas Court of Appeals
    • April 6, 2007
    ...or the creditor can exhaust the security and make a claim for any deficiency remaining due, but not both. See In re Estate of Dahn, 204 Kan. 535, 464 P.2d 238 (1970); In re Estate of Klein, 166 Kan. 334, 201 P.2d 633 (1949). Commerce distinguishes Dahn and Klein as only providing that a sec......
  • Bank v. Bolander
    • United States
    • Kansas Court of Appeals
    • July 30, 2010
    ...or the creditor can exhaust the security and make a claim for any deficiency remaining due, but not both. See In re Estate of Dahn, 204 Kan. 535, 464 P.2d 238 (1970); In re Estate of Klein, 166 Kan. 334, 201 P.2d 633 (1949). Commerce distinguishes Dahn and Klein as only providing that a sec......
  • United States v. Hershberger
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 13, 1973
    ...property will be subject to tax foreclosure if the taxpayer fails to pay his taxes on the homestead property. In Re Estate of Dahn, 204 Kan. 535, 464 P.2d 238 (1970). There appears to be no case law, however, answering the question of whether a homestead can be sold to pay taxes not directl......
  • In re Kester
    • United States
    • U.S. Bankruptcy Appellate Panel, Tenth Circuit
    • March 13, 2006
    ...in his own name.20 The court found that the debtor's equitable interest in the property was sufficient to claim a homestead interest.21 In In re Dahn, the court held that a widow's equitable interest under a conditional sales contract was sufficient to claim a homestead interest in a mobile......
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...In re Hamill, 317 F. Supp. 909 (D. Kan. 1970) (recognizing homestead interest in oral leasehold estate). [FN127]. In re Estate of Dahn, 204 Kan. 535, 464 P.2d 238 (1970); Southern v. Linville, 139 Kan. 850, 33 P.2d 123 (1934); Walz v. Keller, 102 Kan. 124, 169 P. 196 (1917); Stowell v. Kerr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT