Kolar v. Eckhardt

• Decision Date: 07 November 1925
• Docket Number: 25,739
• Citation: 119 Kan. 518,240 P. 947
• Parties: VANDY G. KOLAR et al., Appellees, v. LEVI ECKHARDT, Appellant
• Court: Kansas Supreme Court

240 P. 947

119 Kan. 518

VANDY G. KOLAR et al., Appellees, v. LEVI ECKHARDT, Appellant

No. 25,739

Supreme Court of Kansas

November 7, 1925

Decided July, 1925.

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

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MORTGAGES--Absolute Deed as Mortgage -- Pleading -- Evidence. Against defendant's motion for judgment on the pleadings and evidence, plaintiffs' petition and evidence were sufficient to state and prove a cause of action to have a deed purporting to convey their ranch to defendant judicially declared to be a mortgage, with plaintiffs' right to an accounting, and their right to redeem the property and to have the deed canceled.

2. PLEADING--Amendment--Discretion of Court During Trial. Rule followed that no error can be predicated on the allowance of an amendment to a petition at the close of the evidence where the record contains no showing that the trial court abused its discretion.

3. MORTGAGES--Absolute Deed as Mortgage--Existence of Debt to be Secured. The relation of debtor and creditor may be created by a contract between two parties, although no debt actually exists at the time the contract is made, where the parties intend that such relation shall thereafter arise by the advancement or payment of money by the one party in behalf of the other party, and where that arrangement between the parties is actually carried into effect pursuant to their contract.

4. SAME--Redemption--Implied Obligation to Reimburse. Where plaintiffs conveyed their ranch to defendant to secure him for whatever debts of plaintiffs he should satisfy, the law implied an obligation on the part of plaintiffs to reimburse defendant and redeem their property within a reasonable time after defendant had performed his part of the contract.

5. SAME--Generally. Various other matters of evidence considered; no trial error disclosed; judgment affirmed.

S. C Bloss and J. A. McDermott, both of Winfield, for the appellant.

Albert Faulconer, Kirk W. Dale, C. L. Swartz, W. L. Cunningham and D. Arthur Walker, all of Arkansas City, for the appellees.

OPINION

DAWSON, J.:

The plaintiffs, Vandy G. Kolar and wife, brought this action to have a deed to a ranch in Cowley county declared to be a mortgage to secure whatever sums might be advanced by the defendant grantee to pay liens on the land. They also sued for an accounting and to be permitted to redeem the land by paying whatever such accounting might show to be due from them to defendant, and to have the deed canceled.

Briefly, the facts pleaded by plaintiffs, and which their evidence tended to prove, were to this effect:

In 1922 plaintiffs were the owners of 1,364 acres of Cowley county land, worth $ 30 to $ 40 per acre, incumbered to the extent of some $ 26,000 by mortgages. Defendant owned an adjoining ranch of 3,154 acres, and a quarter section of land in Oklahoma. He resided in Wisconsin, but visited his Cowley county property occasionally, at which times he usually paid plaintiffs a friendly call and sometimes stayed with them as their guest. In November, 1922, defendant came to Cowley county carrying with him a deed to his Oklahoma land, signed in blank by his wife. He went to Winfield and gathered some information from the county records concerning the extent of plaintiffs' indebtedness and then paid them a visit of a few days. In conversation with plaintiff's wife, Mrs. Kolar, he introduced the subject of their financial problems and displayed a knowledge of them which surprised Mrs. Kolar. He expressed a fear that one of their creditors named Denton would get their property away from them. Mrs. Kolar testified:

"He asked me how Vandy was getting along with his loan. I wondered how he knew at the time that Vandy was trying to get a loan; he knew about it and we had said nothing to him about it. . . . I told him we had arranged for a loan with Mr. Denton, but was unable to get the money as Mr. Denton had agreed, and had tried to get it elsewhere. I explained the situation, in a way. I didn't go into details. He says, 'Mrs. Kolar, we never can allow this; we will have to save the place for Vandy. We will have to arrange some way to do it. I will study it up and let you know.'"

Shortly after this conversation, at the suggestion of defendant, the Kolars agreed that the ranch should be deeded to defendant and that defendant's quarter section in Oklahoma should be deeded to Mrs. Kolar, so that a loan might be obtained upon that land to pay off some of the most pressing liens against the Kolar ranch. Defendant assured the Kolars he did not want their land, but would do this to help save it from Denton, and that he would give them a contract reciting the nature of their agreement and the purpose of these conveyances. Plaintiffs suggested that they should go to Winfield and consult a lawyer. Defendant objected to that suggestion and induced them to go to an abstracter or scrivener named Stafford. Defendant said, "We don't need an attorney. Mr. Stafford knows all about these things. He can handle it for us as well as an attorney and less expense." It was partly through the services of this Mr. Stafford that defendant had informed himself of the status of the Kolars' indebtedness on his arrival from Wisconsin and before he had expressed to plaintiffs his solicitude and concern about their financial embarrassments. When Kolar and wife executed the deed to their ranch in defendant's favor, late in the afternoon of November 27, 1922, he left it with Stafford with instructions to have it recorded early next morning, and started to leave Stafford's office, when Kolar inquired of defendant when their contract would be prepared. Defendant replied, "It is late, Vandy; there is plenty of time for that; we will see to that later." At various later times he put off the preparation and execution of the written contract which was to evidence the agreement of the parties. Shortly after November 27 defendant and the Kolars went to Muskogee, Okla., and applied for a loan on the Oklahoma quarter section. The Kolars had never seen that property and knew nothing of its value, and defendant supplied the loan company with the requisite information concerning it, and the Kolars signed the application. Defendant told the loan company's official the Kolars were seeking to borrow the money to pay it to him. This loan was refused, as were one or more applications made elsewhere, apparently for the reason that the land was insufficient in value to secure the sum which the parties wished to borrow. At the time of these transactions defendant did not deliver the deed to the Oklahoma land to plaintiffs, but mailed it to them from Wisconsin about the time this lawsuit was foreshadowed. In January, 1923, plaintiffs notified defendant that they were ready to reimburse him for any sums he had paid out in their behalf and demanded a reconveyance of their ranch.

Much correspondence passed between the parties after the conveyance of the Kolar ranch to defendant in November, 1922, in which defendant continued to avow his disinterested zeal in plaintiffs' behalf, and narrated his efforts and plans and failures to raise money to pay off plaintiffs' most pressing debts. Significant extracts from some of defendant's letters to plaintiffs read:

"December 19, 1922.

"Will assure you, however, any amount due me in our settlement will be taken care of the same as though you had a federal loan. It will therefore affect us only in the ready cash we need so badly. . . . Will do anything I can safely do and assist in any way possible."

"December 21, 1922.

"I thought if we could get a loan on that farm it would be best for me to get it before recording it to you, then insert the loan in the deed and record it in your names as deeded subject to a loan, or if I can get enough money here, will let you have it and take mortgage myself."

"December 29, 1922.

"I hope to be able to swing this ranch deal and am still willing to do anything I can to help you, but I must be safe myself and cannot do much of anything on a moment's notice, so if you can arrange a plan that can save you and at the same time be safe myself, better let me know at once, for if your father cannot help you I do not know who will if I cannot.

"We should get this matter off our hands and our contract drawn so as to know about this also, but we cannot make a contract, Vandy, with this matter hanging over us."

"January 4, 1923.

"Since you are both interested in our business transactions, I feel it proper to address you both in business matters. Will say in the start that I am still endeavoring to raise the cash for Denton and others, but so far have failed, but not entirely discouraged."

"January 5, 1923.

"I do not hear from you folks as fully as I would like, but am sure you both realize that I and my interest are first in this matter, and am ready to strain every nerve to help you come through clear, except between ourselves which am sure you are willing to protect me in. . . . The deed [to the Oklahoma farm] is here, as I have previously written, and I feel since it is that it is best here until the matter is adjusted to the satisfaction of both parties."

"January 8, 1923.

"I sincerely hope you do not think I am trying to beat you folks out of the place there but I wrote you some time ago that I might be able to get a loan on the farm to a better advantage than you since the other application failed so flatly.

"Am sure you have done as well as you can and am doing all I can for you, and am expecting to continue to see you through if you will allow me. I want to save you from the place you have thoughtlessly gotten into. . . . My object is to protect you as well as myself, and...