Elliott v. Faulkner

• Decision Date: 08 November 1930
• Docket Number: 29,482
• Citation: 131 Kan. 528,292 P. 918
• Parties: JAMES H. ELLIOTT and MABEL ELLIOTT, Appellants, v. E. D. FAULKNER and MARY FAULKNER, His Wife, and MOLLIE DEGRAFFENREID, Appellees
• Court: Kansas Supreme Court

292 P. 918

131 Kan. 528

JAMES H. ELLIOTT and MABEL ELLIOTT, Appellants, v. E. D. FAULKNER and MARY FAULKNER, His Wife, and MOLLIE DEGRAFFENREID, Appellees

No. 29,482

Supreme Court of Kansas

November 8, 1930

Decided July, 1930.

Appeal from Cherokee district court; GEORGE F. BEEZLEY, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MORTGAGES--Deed as Mortgage--Joint Consent of Husband and Wife--Agency of Husband. Where the trial court makes a finding of fact supported by sufficient evidence, that at the time of delivery of a deed to real estate the grantors of the deed agreed with the grantee therein that the deed was given to enable the grantee to qualify and become surety on a recognizance bond of the husband, and such other bonds as the grantee might be asked by the husband and wife, or either of them, to execute as surety for them, or either of them, and the title to the property described in the deed should be held by the grantee as security and indemnity against any loss or liability which the grantee might incur or sustain by reason of the execution of any of the bonds referred to, it is held: (a) Such deed was properly decreed to be a mortgage to indemnify the grantee against loss on a supersedeas bond signed as surety for the wife who joined in the execution of the deed. (b) Under the circumstances shown in the record it is held that the property described in the deed in controversy was alienated with the joint consent of both husband and wife within the meaning of section 9 of article 15 of the constitution of the state of Kansas.

Spencer B. Apple, of Baxter Springs, for the appellants.

Charles Stephens, Clarence Rumery, Rawlins Stauffacher and C. B Skidmore, all of Columbus, for the appellees.

OPINION

JOCHEMS, J.:

This was an action seeking to have a certain warranty deed made to the appellee E. D. Faulkner decreed a mortgage, and further asking it be canceled and held for naught because the terms of the mortgage had been fully satisfied.

The petition alleged, in substance, that the plaintiffs gave the defendant Faulkner the deed to indemnify him against any loss which might be sustained by him on account of becoming a surety on an appearance bond for one of the plaintiffs (James H. Elliott), who was being held for trial in the district court of Cherokee county. It was alleged that there was a consideration of $ 3,000 set forth in the deed, but that at the time of the delivery of the deed to the defendant Faulkner there was a mutual agreement between the plaintiff Elliott and the defendant Faulkner to the effect that if the plaintiff should carry out the conditions of the appearance bond and should appear for trial at the time set, the defendant would reconvey the premises to the plaintiffs. It was further alleged that the plaintiff Elliott had fully complied with the conditions of the bond upon which the defendant Faulkner was his surety and that as a result the terms of the mortgage represented by the deed were fully satisfied; that under the agreement with Faulkner the property should be deeded back to the plaintiffs.

Upon the filing of the foregoing petition one Mollie DeGraffenreid intervened and alleged in her intervening petition that she had a judgment against Mabel Elliott, one of the plaintiffs; that Mabel Elliott had appealed the case in which the judgment was obtained to the supreme court of Kansas, and that the defendant Faulkner was one of the sureties on the supersedeas bond of Mabel Elliott in that case. That on the hearing in the supreme court the decision of the lower court was affirmed and the intervener also looked to the defendant Faulkner as one of the sureties on the bond to indemnify her. She alleged further that Faulkner qualified on the supersedeas bond by reason of claiming to be the owner of the property described in plaintiffs' petition.

The answer of the defendant Faulkner alleged that at the time of the giving of the deed by the plaintiffs, the plaintiff J. H. Elliott, for and on behalf of himself and his wife, Mabel Elliott, told the defendant Faulkner that the deed was given and delivered to Faulkner not only to secure him on the appearance bond in the criminal case in which J. H. Elliott was the defendant, but also to secure Faulkner against liability or loss on other bonds which he might be called upon to sign by either of the plaintiffs. The answer further alleged that Mollie DeGraffenreid held a judgment which had been approved by the supreme court of Kansas; that the defendant Faulkner signed the supersedeas bond on the appeal as surety and was liable on that bond; and further, that the plaintiffs are estopped from claiming that the property should be held as security against loss or liability on the part of the defendant Faulkner under the supersedeas bond. Plaintiffs replied to this answer denying the allegations thereof and specifically denying that the deed was given for any purpose other than to secure the appearance of the plaintiff J. H. Elliott in the criminal case against him. Upon the issues thus joined the case was tried to the court without a jury, and upon conclusion of the trial the court made findings of fact and conclusions of law. The court found that the deed in controversy was executed and delivered by the plaintiffs Elliott and wife on September 2, 1925; that on the date the deed was executed and delivered to the defendant, the plaintiffs were residing on, and in possession of, the real estate described in the deed, and have been so residing thereon and in possession of the real estate at all times since that time.

The court also made the following findings of fact and conclusions of law:

"The court further finds that at the time of the delivery of said deed by plaintiffs to the defendant E. D. Faulkner, that it was agreed between the said parties to said deed that the same should be given to the said E. D. Faulkner to enable him to be able to qualify and so that he might become surety on the recognizance bond of the plaintiff James H. Elliott and such other bonds as he might be asked by the plaintiffs or either of them to execute as surety for said plaintiffs or either of them, and that the title to said property should be held by the said E. D. Faulkner as security and indemnity against any loss or liability against the said E. D. Faulkner by reason of the execution by him of any of the bonds above referred to.

"The court further finds that the defendant E. D. Faulkner did sign as surety certain bonds at the request of plaintiffs and in particular did sign as surety on June 9, 1926, in case No 13177 in the district court of Cherokee county, Kansas sitting at Columbus, in which Mollie DeGraffenreid was plaintiff and the above-named plaintiff, Mabel Elliott, was defendant, a supersedeas bond in which plaintiff Mabel Elliott was principal and plaintiff James H. Elliott and defendant E. D. Faulkner were sureties, which case was being appealed to the supreme court of the state of Kansas; that thereafter the judgment in said case was affirmed by the supreme court of the state of Kansas and execution was issued on said judgment against said Mabel Elliott, which was thereafter returned by the sheriff of Cherokee county unsatisfied; that thereafter on October 25, 1927, the said Mollie DeGraffenreid recovered judgment in case No. 13879 in the district court of Cherokee county, Kansas, on said supersedeas bond against the said Mabel Elliott, James H. Elliott and E. D. Faulkner in the sum of $ 3,330.40, with 6 per cent interest thereon per annum from August 1, 1927; that...