Hanrion v. Hanrion

• Decision Date: 10 March 1906
• Docket Number: 14,190
• Parties: HARRIET F. HANRION v. LOUIS B. HANRION et al
• Court: Kansas Supreme Court

84 P. 381

73 Kan. 25

HARRIET F. HANRION v. LOUIS B. HANRION et al

No. 14,190

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge. Opinion filed February 10, 1906. Affirmed. Opinion denying a rehearing filed March 10, 1906. Judgment for costs modified.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MORTGAGES--Payment of Consideration by a Third Party--Resulting Trust. A mortgage of real estate is not a conveyance within the meaning of section 6 of the statute of trusts and powers (Gen. Stat. 1901, § 7880), which provides that when a conveyance is made to one person upon a consideration paid by another no use or trust shall result in favor of the latter, but the title shall vest in the former.

2. EXECUTORS AND ADMINISTRATORS -- Assets of an Estate -- Notes Payable to a Third Party. Where one lends his own money upon the notes of the borrowers secured by mortgages on real estate, which notes and mortgages he retains in his own possession, they are not prevented from being treated as assets of his estate upon his death by the fact that they are made payable to a third person.

Getty, Hutchings & Dean, for plaintiff in error; E. S. McAnany, guardian ad litem.

J. M. Mason, for defendants and cross-petitioner in error.

MASON, J. All the Justices concurring. PORTER, J., not sitting, having served as referee in the court below.

OPINION

MASON, J.

Basile Hanrion died intestate leaving a widow, Harriet F. Hanrion, and four sons. There was some disagreement among the heirs as to the proper distribution of the estate, but they all finally entered into a written contract adjusting the matter. One of the sons, however, Louis B. Hanrion, became dissatisfied and brought a suit against the widow and the other heirs to have the settlement set aside as having been wrongfully procured, and to have the property distributed according to the legal rights of the persons interested. He alleged in his petition that he was the real owner of some of the property which had been treated as assets of the estate, in virtue of its being the proceeds of trust funds placed in the hands of his father by his grandfather for investment for his benefit. He also made a claim that the estate was indebted to him upon an account for services rendered. Issues were joined and the case was tried before a referee, who found that the contract of settlement should be set aside, but that the plaintiff was not a creditor of the estate or the beneficial owner of any of the property involved, and that it should all be distributed among the heirs. The court approved the report of the referee and rendered judgment accordingly. Harriet F. Hanrion began proceedings in error, but later abandoned them. The present hearing is upon a cross-petition in error filed by the plaintiff below, Louis B. Hanrion.

Various assignments of error have been made and argued, but, except for one matter which will be specially noted, they all come under one general head--that the findings of the referee are not supported by the evidence. The record is voluminous, comprising 1370 pages. To review the evidence in detail would serve no useful purpose. Upon this branch of the case it is enough to say that the judgment could not be reversed without invading the province of the referee and reviewing his conclusions upon the credibility of the witnesses, the weight of their testimony, and the inferences to be drawn from the facts established.

The one contention of the cross-petitioner in error that involves the determination of a debatable proposition of law dissociated from any question of fact is based upon the circumstance that the property which the trial court held to be assets of the estate included a number of real-estate mortgages in which Louis B. Hanrion was named as mortgagee, although they were made to secure loans made by Basile Hanrion. The argument is made that such a transaction was the conveyance to one person upon a consideration paid by another within the meaning of section 6 of the statute of trusts and powers, and therefore no use or trust resulted in favor of Basile Hanrion, but the title vested absolutely in Louis B. Hanrion. The section reads:

"When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections." (Gen. Stat. 1901, § 7880.)

It is obvious from the context, if not from the language quoted, that the section is intended to apply only to transactions concerning real property, and not to transfers of personalty. (Baker v. Terrell et al., 8 Minn. 195.) In the case of Robbins v. Robbins, 89 N.Y. 251, the question whether such a statute had application to the execution of a real-estate mortgage to one person where the consideration was paid by another was involved, discussed, and decided, although the result reached was also justified upon other grounds. The view of the court upon this matter is indicated by the conclusion of the first paragraph of the syllabus:

"Held that the provision of the statute of uses and trusts . . . declaring that where a grant is made to one person, the consideration being paid by another, no use or trust shall result in favor of the latter, but title...