Hawley v. Smeiding
| Decision Date | 01 November 1895 |
| Docket Number | 85 |
| Citation | 3 Kan.App. 159,42 P. 841 |
| Parties | EDGAR HAWLEY v. H. E. SMEIDING |
| Court | Kansas Court of Appeals |
Opinion Filed December 4, 1895.
MEMORANDUM.--Error from Franklin district court; A. W BENSON, judge. Action by H. E. Smeiding against Edgar Hawley and others to foreclose a mortgage. Judgment for plaintiff. Defendant Edgar Hawley brings the case to this court. Reversed. The opinion herein, filed December 4, 1895, states the material facts.
Case remanded.
J. W Deford, and W. A. Deford, for plaintiff in error.
W. H Clark, for defendant in error.
OPINION
H. E. Smeiding brought an action in the district court of Franklin county to foreclose a mortgage made by Charles Vandusen and wife upon a certain piece of real estate situated in said county. The plaintiff in error, Edgar Hawley, filed an answer setting up the rendition of a certain judgment in his favor and against Vandusen, and the plaintiff below, Smeiding, replied, alleging in substance that Vandusen was not the owner of the land in question, and had no interest whatever in the same, although the title appeared in him at the time that the mortgage was made, and detailed the facts upon which such claim was made, which will more fully appear later in this opinion. The cause was tried to the court, who made certain special findings of fact and conclusions of law, for a review of which the plaintiff in error brings the case here. The only question to which our attention is directed is that the conclusions of law found by the court are not supported by the findings of fact. The court found the facts in substance as follows: That on March 2, 1889, Hawley recovered a judgment in the district court of Franklin county against the defendant Chas. Vandusen for $ 196.12 damages and $ 60 costs, which judgment remained in full force and unsatisfied; that on November 12, 1889, one Watkins was the owner of the real estate described in the petition, and on that date said Watkins made a trade with F. E. Crane, whereby Crane delivered to him a stock of merchandise, and he, Watkins, executed and delivered to Crane a deed for said real estate, complete except as to the grantee, the name of which, at Crane's request, was left blank; that prior to said date a judgment for $ 1,461.30 and costs had been rendered in the district court of Franklin county against said Crane, which was still in full force and effect, but that Crane had caused proceedings in error to be prosecuted in the supreme court and had filed a supersedeas bond to stay execution upon such judgment; that Crane, desiring and intending to negotiate a loan upon said real estate, and believing that if the title should appear in his name he would be unable to do so, caused said deed to be delivered to him blank as to the grantee; that on December 23, 1889, said Crane applied to U. M. Beachy, who was plaintiff's agent, for a loan of $ 1,000 on said real estate, and in the presence of Beachy and of Charles Vandusen the name of said Vandusen was inserted as grantee in said deed, and a mortgage for $ 1,000 to secure a note for a like amount was executed by Vandusen and wife upon said real estate to plaintiff as mortgagee and delivered to Beachy, who thereupon paid Crane said $ 1,000, and Vandusen and wife made and delivered their deed of conveyance for said real estate to Crane. The writing of Vandusen's name as grantee in said deed, the execution and delivery of said note and mortgage to the plaintiff and of said deed to Crane by Vandusen and wife and the payment of the $ 1,000 to Crane were simultaneous acts. Vandusen and wife had no interest in said real estate or in the loan so negotiated except that they took the title as an accommodation to Crane that he might negotiate and obtain said loan, all of which said Beachy well knew. Said Beachy also had actual knowledge of the existence of the judgment against Crane, and that the title was so made through Vandusen to avoid the lien thereof. No writing was ever made concerning said real estate between Crane and Vandusen, except the execution of the papers as herein stated. Hawley had issued two executions on his judgment, and levied the same on the real estate in question, but the same were returned that the land was unsold for want of bidders, and said court made an order for a new appraisal of said land.
From these findings of fact the court made the following conclusions of law, in substance: That as Vandusen never owned the real estate in question, and had no interest therein, Hawley's judgment never became a lien thereon, and he can take nothing in this action by or through such judgment; that the lien of Smeiding under his mortgage, as established and merged in the judgment therein rendered, was a first and prior lien upon said real estate, and that Hawley had no lien whatever. Did the court commit error in its conclusions of law? Paragraph 7164, General Statutes of 1889, provides:
"When a conveyance for a...
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