Jenkins v. Simmons

• Decision Date: 05 November 1887
• Citation: 37 Kan. 496,15 P. 522
• Parties: WILLIAM H. JENKINS v. HIRAM V. SIMMONS, et al
• Court: Kansas Supreme Court

15 P. 522

37 Kan. 496

WILLIAM H. JENKINS v. HIRAM V. SIMMONS, et al

Supreme Court of Kansas

November 5, 1887

Error from Chase District Court.

ACTION by Jenkins against Simmons and wife and two others, upon five promissory notes, and to enforce a certain contract made by plaintiff and defendant Simmons in October, 1878; also, to obtain a decree setting aside and canceling the release of a certain mortgage executed by Simmons and wife on their homestead in Chase county, to secure the payment of the notes aforesaid, and for the foreclosure of said mortgage. Trial by the court, at the April Term, 1885. As conclusions of law the court found that plaintiff was entitled to judgment against Hiram V. Simmons for the sum of $ 2,118.20, with interest at ten per cent. per annum until the same should be paid; that the plaintiff was not entitled to have the same declared a lien on said premises; that he was not entitled to have the release of said mortgage set aside and canceled; and that he was not entitled to any relief in the case other than a personal judgment against Simmons. New trial denied. Judgment was accordingly entered against Simmons for the sum above named with interest, and as to Mrs. Simmons, judgment was rendered in her favor. The plaintiff Jenkins brings the case to this court. The opinion contains a sufficient statement of the material facts.

J. B Johnson, for plaintiff in error.

F. P Cochran, and John V. Sanders, for defendant in error Emeline Simmons.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This is a peculiar case, and, in view of all the facts and circumstances proven at the trial and found by the court below, the relieving hand of a court of equity ought to be extended to the plaintiff in error, if the court has power to manipulate it. Whether it has or not, is the question.

The defendant in error, Hiram V. Simmons, was indebted to the plaintiff in error in a large sum of money. This indebtedness was evidenced by five promissory notes signed by Hiram V. Simmons alone. To secure their payment, a mortgage was executed on land occupied by Simmons, his wife and children, as a homestead. The mortgage was signed by Emeline Simmons, the wife of Hiram V. Simmons, as well as by the husband. The title to the homestead was in Hiram V. Simmons; the land is situated in Chase county; and the plaintiff in error is a resident of Jefferson county. In October, 1878, at a time when two or more of the notes were due and unpaid, Hiram V. Simmons and the plaintiff in error met in Valley Falls, in Jefferson county, and made an agreement that Hiram V. Simmons was to borrow the sum of fifteen hundred dollars from the Kansas Loan and Trust Company, or from other persons, and pay the same to the plaintiff in error on amount due on said notes. In order to enable Hiram V. Simmons to make the loan, it was agreed by the plaintiff in error that he would release and discharge the mortgage held by him, so that the sum of fifteen hundred dollars should be and constitute a first lien on the land, and that the plaintiff in error would pay all the expense accruing by said loan; that the said Hiram V. Simmons was then to execute a note for the remainder due the plaintiff in error, and secure the same by a second mortgage on said land, payable at such reasonable time as he might designate -- Emeline Simmons not being present and not having any knowledge of the agreement. About the 1st day of October, 1878, the $ 1,500 was procured, and a mortgage executed by Simmons and wife to secure it; which was duly recorded, and the money paid over to the plaintiff in error, he executing a release and discharge of his mortgage, and having the same entered on the margin of the record thereof. The only consideration for the release of said mortgage was the agreement above recited. He now seeks to have the release and discharge canceled, and his mortgage foreclosed. It will be observed from the statement above that Emeline Simmons was not a party to that agreement. There is a special finding that she was not present, and had no knowledge of it. The court below further found that Emeline Simmons did not in fact at any time consent to join in executing the second mortgage to the plaintiff in error, and did not know of the agreement between her husband and the plaintiff in error for a second mortgage, until after the first was released by the plaintiff in error.

The question then is: Can she be bound by a contract respecting her homestead right, to which she is not a party, and to which she has never given her consent? There is no necessity for assigning reasons to justify a negative answer to the question; it is too plain for argument. But it is said that she has taken advantage of the agreement, and acted upon it, so far as it resulted to her own benefit, and that in consequence of this participation in its benefits, equity requires that she should assume its liabilities and reciprocal obligations. There would be much more force and greater equity in the assertion, if the record showed that before she joined in the execution of the mortgage to the Kansas Loan and Trust Company, she had been made acquainted with all the terms and conditions of the agreement made between her husband and the plaintiff in error at Valley Falls; and the appeal would be still stronger if the plaintiff in error had exercised the most ordinary prudence respecting this transaction; had acquainted Emeline Simmons with the terms of the agreement, and had secured her assurances that a new mortgage would be executed before he had entered of record a release and discharge of the existing one. From the facts found by the court, the conclusion is irresistible that she did not execute the mortgage to the Loan and Trust Company with the intent or design to reap the benefits of the Valley Falls agreement and repudiate its obligations. She acted without knowledge of it; and when she was informed of it, promptly refused to agree to it, for the reason that the land was her homestead, and she was not a party to the contract. In this view it does seem that there is no equitable principle that can be invoked to aid the plaintiff in error. It might be different if the record disclosed that, with a full knowledge and a perfect understanding of all the terms and conditions of the contract made at Valley Falls, she had accepted its benefits and arbitrarily refused to assume its obligations. Hence we find no excuse for equitable interference in this respect on behalf of the plaintiff in error.

It is said that the plaintiff in error is entitled to the interposition of the equitable power of the court, because of mistake, surprise, accident or fraud in the contract with Simmons at Valley Falls, and that the discharge and release of his mortgage ought to be canceled for that reason. Counsel for plaintiff in error in his brief says: "It may be difficult in this case to determine with absolute certainty under which of these precise heads the plaintiff is entitled to relief;" and at the bar he contended that "the circumstances of the case bordered on all of them." The difficulty with us is to make an application of the principles by which a court of equity grants relief on the ground of fraud, accident, mistake, or surprise, to a party to a contract, to one who was not a party, or had no knowledge of such contract. If we are to enter into an inquiry of that kind, it is well to define its limits in the beginning. This is the precise question: When three persons have an interest in the subject-matter of a contract, and two of these interested, without the presence or knowledge of the third, make an agreement respecting it, by the terms of which some action is to be taken by the third, and the agreement is executed so far as the two are concerned, and the third refuses to perform the part assigned, can the part performance of the two be canceled by a court of equity, on the ground that the agreement between the two was the result of mistake, accident, surprise, or fraud, when the sole and the only cause shown was the refusal of the third party to perform the part assigned? However binding such agreement between the two would be, it must be conceded that it could not be enforced against the third. It cannot be that under any conceivable circumstances a contract can be enforced against one who was not a party to it, or had no knowledge of it. If it had been alleged and shown that the two had no knowledge of the interest of the third, or had acted under a belief created by the acts or declarations of the third that the conditions of their agreement would be performed by such third party, the solution of the question could be easily determined. But the naked fact in the case is, that the two proceeded to make their agreement respecting the subject-matter of the contract with a full knowledge of the rights of the third, and performed their respective obligations created by it without reference to or apparently without a thought or care for the rights and interests of Emeline Simmons, notwithstanding they must have known, and did know as a matter of law, that no agreement of theirs could create a valid mortgage lien upon the homestead of Emeline Simmons, without her consent. It may be that they assumed, without thought or expression, that whatever Hiram V. Simmons determined to do with the land occupied by his wife and children as a homestead, the wife, as a matter of course, or as a matter of duty, would accede to without objection or protest. The court below found that the plaintiff in error released his mortgage, believing at the time he released that Hiram V. Simmons and his wife Emeline Simmons would join in the execution of a second mortgage on the homestead, to secure to him the...