Howard v. Howard

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL, Justice.
• Citation: Howard v. Howard, 149 Kan. 223, 86 P.2d 510 (Kan. 1939)
• Decision Date: 28 January 1939
• Docket Number: 34125.
• Parties: HOWARD v. HOWARD et al.

86 P.2d 510

149 Kan. 223

HOWARD v. HOWARD et al.

No. 34125.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

An attachment creditor cannot subject to sale in satisfaction of his claim a greater interest in land than that owned by his debtor.

A purchaser at sheriff's sale under attachment acquires no greater interest in and no better title to the land than the judgment debtor himself possessed. Gen.St.1935, 60-3465.

Where existing rights of son under recorded mortgage given by parents as joint owners to son in consideration of future support were not determined in attachment suit instituted by general creditor of nonresident parent, purchaser at sheriff's sale took subject to son's rights. Gen.St.1935, 60-3465.

Where mortgage was given by parents as joint owners to son in consideration of future support, and son furnished support in excess of land's value before validity of mortgage was challenged, mortgage was properly held to constitute lien prior to interest of purchaser at sheriff's sale under attachment. Gen.St.1935, 60-3465.

In action to foreclose mortgage wherein attachment sale purchaser challenged mortgagee's interest on theory of fraud, two-year statute of limitation was available as bar to purchaser's claim, since purchaser was seeking affirmative relief rather than merely defending his title Gen.St.1935, 60-306, third.

1. An attachment creditor cannot reach and subject to sale in satisfaction of his claim a greater interest in land than that owned by his debtor, and a purchaser at the sheriff's sale acquires no greater interest in and no better title to the land than the judgment debtor himself possessed in the land.

2. Where land of nonresidents was attached and sold in an action by a general creditor of one of the joint owners of the land while there was of record a mortgage on the land given by the parents, the owners of the land, to a son in consideration of future support, and the existing rights of the mortgagee were not determined or disturbed in the attachment suit, the purchaser at the sheriff's sale did not obtain the interest of the judgment debtor in the land free from the existing rights of the mortgagee.

3. The record in a mortgage foreclosure action examined and held (1) At the commencement of such foreclosure action, prior to any challenge of the validity of the mortgage, plaintiff had expended under the contract for future support of his parents an amount in excess of the value of the mortgaged land and the mortgage was properly held to constitute a lien on the land which was prior and paramount to the interest of the purchaser at a former sheriff's sale; (2) the purchaser under his answer and cross-petition, was defending not only the interest in the land he acquired at sheriff's sale but was seeking to acquire a greater interest and a more perfect title on the ground he had been defrauded. To the extent he sought affirmative relief on the ground of fraud his action was barred under the two-year statute of limitations. G.S. 1935, 60-306, third.

Appeal from District Court, Brown County; C. W. Ryan, Judge.

Action by Frank L. Howard against Mary E. Howard, Francis Livengood and others, to foreclose a real estate mortgage. Judgment for plaintiff, and the second named defendant appeals.

L. E. Helvern and Richard W. Shaw, both of Hiawatha, for appellant.

Walker F. Means of Hiawatha, for appellee.

WEDELL Justice.

This was an action to foreclose a real estate mortgage. Judgment went for the plaintiff, and the defendant, Francis Livengood, alone appeals. The defendants in the action were Mary E. Howard, mother of the plaintiff, Frank L. Howard, Francis Livengood and Mildred Livengood, his wife, Charles W. Johnson, receiver of The Citizens State Bank of Morrill, an insolvent corporation, and Bryant Scott and Agnes Scott, his wife. The note in the sum of $5,000 and the mortgage securing it were signed by Mary E. Howard and N. E. Howard, the mother and father of the plaintiff, the father having died prior to the commencement of this action. The action was commenced when default was made under the terms of the mortgage. The relationship of the other defendants to the action will appear in the course of the opinion, but we are now concerned only with the rights of the appellant, Francis Livengood. The note and mortgage constituted a part of a written contract dated June 6, 1932, between Frank L. Howard and his parents, for the future support of the parents, This action was commenced August 25, 1936. The defendant, Livengood, claimed title to the land as a purchaser at an attachment sale in another action which had been brought by a creditor of plaintiff's mother. In an answer and cross-petition in the present action the defendant, Livengood, sought to have plaintiff's rights under the mortgage set aside on the ground the mortgage constituted a fraud on a creditor of plaintiff's mother and also a fraud on him. Judgment was rendered on the pleadings and stipulated facts.

The pertinent facts were in substance as follows: On August 5 1931, Mary E. Howard and N. E. Howard were the owners of an eighty-acre tract of land located in Brown county. They each owned an equal undivided one-half interest therein. On August 5, 1931, Mary E. Howard alone executed an unsecured note in the sum of $1,006.66 to The Citizens State Bank of Morrill. That bank later failed. The son, Frank L. Howard, had knowledge of the debt to the bank. June 6, 1932, plaintiff's parents entered into a written contract with the plaintiff. They were all living in California at the time. In the contract plaintiff agreed to provide all future support for his parents. The parents in turn executed the $5,000 note and first mortgage upon the land in question and assigned to plaintiff a note in the sum of $1,000 which was secured by a first mortgage on five acres of land in Brown county. They also assigned to plaintiff a $700 note which was unsecured and all of the revenues from their land. Plaintiff agreed to use the revenues for the payment of taxes, insurance, interest and incidental expenses required in the maintenance and upkeep of the property. In the event of a deficiency between the income and expenses, plaintiff was to pay the same. The assignments covered substantially all of the property owned by the parents other than the land in question. The mortgage to plaintiff was recorded June 11, 1932. Plaintiff supported his father until his death and continued to support his mother at all times. In the support of his parents he expended in excess of all income from the land, the sum of $4,445.42. The land was worth approximately $4,000. On November 9, 1933, the receiver of the defunct bank instituted suit on the note given by plaintiff's mother. The eighty-acre tract of land was attached at the commencement of that action and the son, Frank L. Howard, was made a party to that action. N. E. Howard, the father, died intestate, November 25, 1933, and Mary E. Howard became the owner of an equal undivided three-fourths interest in the farm and plaintiff obtained a one-fourth interest therein, they being the only heirs of the deceased. Frank L. Howard and his mother became tenants in common. September 25, 1934, Frank L. Howard lodged a demurrer to the petition of the receiver on the ground of misjoinder of parties defendant, and causes of action. The demurrer was sustained. No appeal was taken from that ruling. April 23, 1935, judgment was rendered in the receivership action against the defendant, Mary E. Howard, only, in the sum of $1,009.21, together with interest. On August 19, 1935, the land was sold to Francis Livengood for $1,075. The present foreclosure action, as previously stated, was commenced August 25, 1936. On March 1, 1937, a sheriff's deed was issued to Francis Livengood, and that deed was recorded on March 13, 1937. On March 18, 1937, Francis Livengood entered into a farm lease for one year with Bryant Scott. On June 15, 1937, a demurrer of the plaintiff, in the instant action, was sustained to the separate answer of Francis Livengood. No appeal was taken from that ruling and that answer is not contained in the record before us. On August 18, 1937, Livengood filed a separate answer and cross-petition in which he claimed title...