Dreese v. Myers

• Decision Date: 07 October 1893
• Citation: 52 Kan. 126,34 P. 349
• Parties: ANNA DREESE v. WILLIS A. MYERS
• Court: Kansas Supreme Court

34 P. 349

52 Kan. 126

ANNA DREESE v. WILLIS A. MYERS

Supreme Court of Kansas

October 7, 1893

Error from Ellis District Court.

ACTION by Willis A. Myers against Anna Dreese for the foreclosure of a mortgage. At the May term, 1889, plaintiff had judgment and, from an order refusing to set aside the sale thereon defendant brings error.

Judgment reversed and cause remanded.

A. D Gilkeson, for plaintiff in error:

The testimony in this case shows that the plaintiff in error was, at the time of making this mortgage, and for a long time prior thereto, in the open and notorious possession of this property as a homestead, with the family consisting of five children, and her husband had been a resident with her of this city. Her possession, then, was notice to the world of her interest and tenure. Davies v. Cole, 28 Kan. 260; Moore v. Reaves, 15 id. 150; Tarrant v. Swain, 15 id. 146.

And it was the duty of the mortgagee to ascertain how this land was held, whether as a homestead or not, and, if it was, it is equally his duty to obtain the joint consent to the mortgagor. Thimes v. Stumpff, 33 Kan. 53.

It is true that the defendant in error claims that she said she was a widow, but he could not give the conversation, and the mortgage does not recite any such statement, which, to say the least, is very peculiar. This money was not borrowed or loaned to pay any existing lien, and there is no proof of any lien being in existence on this property, for improvements or taxes, or of any kind. The money paid to witness Haverman was upon an open account, and some of it was paid prior to the borrowing of the money, to wit, September 14, 1886. The amount paid to Hall, for all the record discloses, was also paid on an open account. Nor was it borrowed for the payment of an obligation contracted for the purchase of said premises. These propositions being true, the court had no power to declare the indebtedness a lien upon the homestead. The constitution declares and prescribes the manner of the creation of a lien on a homestead, and it must be strictly followed. Jenkins v. Simmons, 37 Kan. 496. Neither can the good faith of the mortgagee cut any figure in determining the validity of the mortgage. Anderson v. Anderson, 9 Kan. 112; Helm v. Helm, 11 id. 19.

A judgment rendered against the husband alone is not a lien upon the homestead. Morris v. Ward, 5 Kan. 239; Wheat v. Burgess, 21 id. 407. And in the case at bar the record shows that the wife alone was a party to this judgment.

Wm. L. Aaron, for defendant in error:

The plaintiff in error never filed a motion for a new trial, nor gave the court an opportunity to review its own judgment, and, we insist, is not in a position to ask this court to review this case. This was a trial of a question of fact, the same as if it had been heard by a jury, and we cannot conceive how the supreme court will ignore this essential step. City of McPherson v. Manning, 43 Kan. 129; Crawford v. Gulf Rld. Co., 45 id. 475; Roper v. Ferris, 48 id. 583.

The court below found "that the money loaned by plaintiff to defendant was used by defendant to pay the purchase price of said real estate, and to pay for the materials for the improvements upon the same, and that the said money was used to discharge said indebtedness and the liens existing thereby." This finding, will not be disturbed. Luke v. Johnnycake, 9 Kan. 511; Forbes v. Higginbotham, 44 id. 94; Const., art. 15, § 9; Tyler v. Johnson, 47 Kan. 410.

The fact that Myers accepted the deed signed by her alone, paid her and her creditors the money, shows he relied on her statement that she was a widow; besides, her husband, if she had any, and we have no competent proof of this, had been gone seven years, and they were strangers, all point to the statement made by Anna Dreese that she was a widow and that Myers believed it. Then plaintiff in error is estopped from saying now that she is married, for these are the privies and original parties to the contract, and Michael Dreese is not claiming anything in this suit as husband of Anna Dreese. Either she was wrong then, or is wrong now. She is estopped by her fraudulent statement in pais and by her covenant in the mortgage. 1 Greenl. Ev., §§ 22-24, 207-211; Jones, Mort., §§ 631, 682, 683, 1484; 2 Pars. Cont., p. 791, et seq.; McAlpine v. Powell, 44 Kan. 411; Pearson v. Hardin, 54 N.W. 904; 12 Cent. Law. J. 29, and cases cited.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This proceeding was brought to review the ruling of the district court refusing to set aside a sale of real estate which had been made in pursuance of an order of that court. The order was made in an action brought to recover upon an indebtedness of $ 200 due from Anna Dreese to Willis A. Myers, and to foreclose a mortgage given to secure the payment of the indebtedness. Personal service was made upon the defendant Mrs. Dreese, but she filed no answer and made no defense. On May 12, 1888, judgment was rendered for the amount, and for a foreclosure of the mortgage; but no execution of the judgment was attempted until March, 1890, when the order of sale mentioned was issued. After appraisement and due notice, a sale of the property -- which was a lot in Hays City -- was made on April 26, 1889, for more than two-thirds of the appraised value. On the same day, Mrs. Dreese filed her motion to set aside the sale, the principal ground of which was, that the property was a homestead at the time the mortgage was given and foreclosed, occupied by herself and her family, consisting of five children; that she was a married woman, and her husband was still living; and that, as the mortgage was not signed by him, and he was not made a party to the action, nor given notice of its pendency, the mortgage...