Jones v. St. Francis Hospital & School of Nursing, Inc.

• Citation: 225 Kan. 649,594 P.2d 162
• Decision Date: 05 May 1979
• Docket Number: No. 49506,49506
• Parties: Georgia JONES, Appellant, v. ST. FRANCIS HOSPITAL & SCHOOL OF NURSING, INC., a corporation, Appellee.
• Court: Kansas Supreme Court

Page 162

594 P.2d 162

225 Kan. 649

Georgia JONES, Appellant, v. ST. FRANCIS HOSPITAL & SCHOOL OF NURSING, INC., a

corporation, Appellee.

No. 49506.

Supreme Court of Kansas.

May 5, 1979.

Syllabus by the Court

1. When property is occupied by the owner and spouse as a family homestead and at the death of the owner it is inherited by the spouse it is then held as the absolute property of the spouse, free from debts of the decedent, so long as the spouse continues to occupy the property as a homestead.

2. Demands against a decedent's estate fall into two general categories, secured and unsecured demands.

3. In an action brought to set aside a sale of real property on general execution the record on appeal is examined and it is Held: (1) The personal judgment never became a lien against the homestead of the judgment debtor; (2) No administrator of the estate of the judgment debtor was appointed within one year after the debtor's death; (3) The personal judgment being an unsecured demand against the decedent's estate became barred by the nonclaim statute; and (4) The execution sale of the property held nine years after the death of the judgment debtor was void and should be set aside.

David P. Troup, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita argued the cause and was on the brief for appellant.

Robert L. Heath, of Jochems, Sargent & Blaes, Wichita, argued the cause and was on the brief for appellee.

FROMME, Justice:

This is an interlocutory appeal certified by a district court and presented to this court on an agreed statement of facts. The action as filed in the district court was brought for the purpose of setting aside an execution sale of a residence property in Wichita. The district court held that the plaintiff and her deceased husband each owned a half interest in the property when the execution was levied, and that title to the property sold to satisfy the judgment debt of the husband did not pass to the purchaser. The certificate of purchase issued by reason of said sale and the sheriff's deed were set aside as void because they purported to cover the wife's interest. It was further held that one-half interest in the residence formerly owned by the deceased husband remained subject to the judgment lien.

The identification of issues by the parties to this appeal leaves a great deal to be desired. In the "agreed statement of facts and issues" ten issues are identified as those to be considered on appeal. In appellant's brief six "questions presented" are first listed but these are ignored in the argument presented in the brief, and five different points are then listed and discussed. The appellee's brief speaks to five points but two of the five points do not coincide with those discussed by appellant. We will not attempt to answer the ten issues identified in the "agreed statement of facts and issues." We will address only those issues which appear necessary to decide this appeal.

We believe a sequence of events will be helpful.

October 10, 1955, Horace N. Miller and his first wife, Ora J. Miller, acquired the property in controversy by deed as joint tenants with right of survivorship and not as tenants in common.

November 8, 1960, Ora J. Miller died and her interest in the property passed to Horace N. Miller as the surviving joint tenant.

In 1962, Horace N. Miller and Georgia Jones entered into a marriage contract. Miller and Jones resided on the property and occupied it as their homestead.

March 21, 1966, the appellee St. Francis Hospital obtained a personal judgment against Horace N. Miller.

August 18, 1966, Horace N. Miller died intestate. At that time the property was occupied as a homestead by Miller and his second wife, Jones. No probate proceedings were filed to administer his intestate estate. Jones continued to live in the premises.

July 28, 1969, almost three years later, St. Francis Hospital issued a general execution against the property of Miller. The execution was returned unsatisfied with a notation, "Not found (deceased)."

April 19, 1971, a proceeding was filed in the probate court for determination of the descent of the property with a caption, "In the Matter of the Estates of Horace N. Miller and Ora L. Miller, deceased." In the decree it is recited all debts have been paid except a judgment of St. Francis Hospital. Notice of the hearing was published in the paper but notice was not mailed to the hospital. The plaintiff Georgia Jones was adjudged to be the sole owner of the property as of August 18, 1966.

In late 1972, plaintiff Jones remarried, thus acquiring the surname Jones. She moved from the property in question and leased the same to third parties.

July 12, 1973, the hospital caused a second general execution to be issued against the property of Horace N. Miller. The execution was returned and marked "no goods found."

January 16, 1975, the hospital caused the third general execution to be issued, and the sheriff was instructed to levy against the property in question, Lot 46, Block J, Plainview Subdivision 1. The sheriff levied execution against the property and proceeded to advertise and sell it at sheriff's sale.

February 20, 1975, after publication of the date and place of sale, the property was sold to the hospital for the amount of the judgment. No substitution of parties was ever noted in the records of the case. No notice of sale was served on Jones.

May 19, 1975, an order confirming the sheriff's sale was entered by the court in the original case of St. Francis Hospital v. Horace N. Miller. Neither Jones nor any attorney in her behalf appeared in these proceedings.

June 6, 1975, a certificate of purchase was issued to the hospital by the sheriff.

Jones maintained possession of the property, continued to collect the rents, and paid the real estate taxes assessed against the property throughout the years of 1975 and 1976.

In early 1977, the hospital advised Jones that it claimed ownership of the property.

April 8, 1977, Jones filed suit to set aside the sale, quiet her title to the property and to recover damages for wrongful execution and sale of the property.

The appellant Jones argues as follows: That the hospital's judgment became dormant upon the death of Horace N. Miller. The executions issued after the death of Miller were invalid and ineffective because the hospital failed to revive the judgment against the heirs of Horace N. Miller. The hospital acquired nothing at the general execution sale of the deceased person's property which property had previously passed on his death to his wife, Georgia Jones. The judgment entered against Horace N. Miller in 1966 did not constitute a lien against the property for it was and continued to be the family homestead. Appellant Jones concludes that regardless of the foregoing the decree of descent assigned title to the property to her and that the validity of the decree is now incontestable.

The appellee hospital on the other hand argues as follows: The judgment did not become dormant upon the death of Miller. The executions issued after the...