Jordan v. Channell

• Decision Date: 06 April 1918
• Docket Number: 21,432
• Citation: 175 P. 95,102 Kan. 793
• Parties: W. R. WILSON and CLARA I. JORDAN, Appellees, v. S. P. CHANNELL et al. (THE RUSH MANUFACTURING COMPANY, Appellant)
• Court: Kansas Supreme Court

175 P. 95

102 Kan. 793

W. R. WILSON and CLARA I. JORDAN, Appellees, v. S. P. CHANNELL et al. (THE RUSH MANUFACTURING COMPANY, Appellant)

No. 21,432

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENTS AND DISTRIBUTIONS--Indebtedness of Heir to Ancestor--Equitable Distribution of Estate. An indebtedness owing by an heir to his ancestor, remaining unpaid on the final settlement of the estate, constitutes an equitable lien upon such heir's distributive share of the real property belonging to the estate, superior to the lien of a judgment existing and docketed against him at the time of the death of his ancestor; and, after such final settlement, the interests of the other heirs in the real property are paramount to the lien of the judgment creditor.

2. SAME--Statute of Limitations. Such a claim as that mentioned in paragraph 1 of this syllabus is not affected by the statute of limitations.

C. T Atkinson, of Arkansas City, for the appellant.

W. L. Cunningham, and H. S. Hines, both of Arkansas City, for the appellees.

Marshall J., Johnston, C. J., Porter, West, JJ., dissent.

OPINION

MARSHALL, J.:

Defendant The Rush Manufacturing Company appeals from a judgment in favor of the plaintiffs quieting title to real property in Arkansas City. Martha A. Wilson died intestate owning the real property in controversy and owning personal property of the value of about $ 60. She left surviving her, as her heirs, H. O. Wilson and the plaintiffs, W. R. Wilson and Clara I. Jordan. H. O. Wilson was indebted to Martha A. Wilson, at the time of her death, in a sum equal to more than one-third of the value of the real property. That indebtedness had been due for more than three years prior to her death. Some time prior thereto, defendant The Rush Manufacturing Company recovered a judgment in the district court of Cowley county against H. O. Wilson for $ 192.15, and costs $ 163.25. At the time of the commencement of the present action, the estate of Martha A. Wilson had been fully administered and closed as provided by law.

The final order of distribution made by the probate court contains the following:

"The court further finds that the said Martha A. Abshear [Martha A. Wilson] left surviving her as her only heirs the said W. R. Wilson (sometimes called W. Robert Wilson) of Arkansas City, Kansas, H. O. Wilson of Arkansas City, Kansas, and Clara I. Jordan of Sommers, Arkansas, and that the said H. O. Wilson, at the time of the death of the said Martha A. Abshear, his mother, and ever since was and has been indebted unto her and unto said estate in the sum in excess of any interest which he might have therein, and that by reason thereof, he has no interest in said estate, and had no interest at the time of the death of his said mother, that said H. O. Wilson has quitclaimed all of his right and title in and unto all of said real estate and disclaimed any interest in and unto all personal property, in full settlement and liquidation of the claim which said estate had against him, and is fully released and discharged therefrom, and has no interest and had no interest at the time of the death of his mother in her estate.

"It is therefore considered, ordered and adjudged by the court that the said W. R. Wilson and Clara I. Jordan are the sole heirs of the deceased, and the sole owners of said estate and property both real and personal, and that all other persons here and after claiming or pretending to claim an interest in said estate be forever barred."

The plaintiffs claimed to be the owners of all the real property in controversy and claimed to be in possession thereof. The Rush Manufacturing Company set up its judgment against H. O. Wilson, and claimed that the judgment was a lien on the real property inherited by him.

1. Did the judgment in favor of the Rush Manufacturing Company become a lien on the real property inherited by H. O. Wilson, prior to any claim of the estate of Martha A. Wilson, on account of the indebtedness to her from H. O. Wilson, and for that reason, prior to any claim or interest in the property held by the plaintiffs? Some observations concerning undisputed principles of law may assist in correctly answering this question. By section 7320 of the General Statutes of 1915, a judgment of the district court is a lien on the real estate of a judgment debtor within the county in which the judgment was rendered. This lien attaches to the interest of the judgment debtor, and to nothing more. An heir has no interest in his ancestor's real property; but, when the ancestor dies intestate, that property descends at once to the heir. Advancements are recognized by statute and must be considered in the final distribution of the estate of the deceased person.

There are two lines of authorities concerning the right of a creditor to look to the real property inherited by his debtor, where that debtor owed his ancestor an amount in excess of the value of the property inherited. Each line of authorities is supported by good reasoning. The leading case supporting the right of the creditor as against the estate is Marvin v. Bowlby, 142 Mich. 245, 105 N.W. 751. After citing and analyzing numerous decisions on this question, the Michigan court said:

"We therefore hold that the distributive share of the real estate of an heir, debtor to the estate of his ancestor, is not chargeable with such indebtedness either as against the land or the proceeds of the sale thereof in the hands of the administrator; that such indebtedness is to be collected by proceedings brought the same as for collecting any other indebtedness due the estate." (p. 256.)

Probably the best-considered case on the other side is Stenson v H. S. Halvorson Co., 28 N.D. 151, 147 N.W. 800, where it was held that an indebtedness owing by an heir to the estate constitutes a prior equitable lien on the heir's distributive share of the real estate, as against the liens of judgments...