Kothman v. Markson

• Decision Date: 09 January 1886
• Citation: 34 Kan. 542,9 P. 218
• Parties: F. KOTHMAN v. HERMAN MARKSON
• Court: Kansas Supreme Court

9 P. 218

34 Kan. 542

F. KOTHMAN v. HERMAN MARKSON

Supreme Court of Kansas

January 9, 1886

[Copyrighted Material Omitted]

Error from Leavenworth District Court.

F KOTHMAN brought this action against Herman Markson and the heirs and creditors of the estate of John J. Myers, deceased but Herman Markson is the only defendant who has been served with summons, or in any way brought into the case. In his petition the plaintiff in substance alleged that at the May Term, 1874, of the district court of Leavenworth county, he obtained a judgment against John J. Myers for $ 10,751.95, and the costs of the action. When judgment was rendered therein, a large body of land that had been attached in the action was ordered to be sold. On December 10, 1874, John J. Myers died, in the state of Texas; and on the following May, Herman Markson was appointed administrator of his estate. On June 1, 1875, Markson filed an inventory of the estate, and reported that there was no personal property, but that the deceased was the owner of certain real estate which had been ordered sold to satisfy a judgment obtained by Kothman. It is further alleged that on August 17, 1875, one E. H. Skaggs began a suit in the same court to foreclose a mortgage executed by John J. Myers upon the real estate which had been attached, claiming that there was due on the mortgage $ 14,000; that in this suit the heirs and creditors of John J. Myers, deceased, Markson, administrator, and this plaintiff, were made parties, and that on the 30th day of April, 1881, a judgment was rendered therein that the note and mortgage of Skaggs were fraudulent and void, and by the same judgment Kothman was adjudged to be entitled to no relief, from which he prosecuted a proceeding in error to the supreme court, where the judgment was reversed, and by the mandate of that court the district court was ordered to render a judgment in favor of Kothman; that his judgment was a first and paramount lien on the real estate, and that it be sold to satisfy such judgment; that on December 16, 1882, the district court gave judgment against Herman Markson, administrator, in favor of Kothman, for the sum of $ 17,286.50, and decreed that the real estate of the John J. Myers estate be sold to satisfy the judgment; that judgment was affirmed on petition in error by Markson to this court, and is reported in 29 Kan. 718. In pursuance of the last judgment, execution was issued on December 13, 1882, under which the real estate mentioned was sold for $ 8,341, out of which sum a large amount was taken to pay taxes on the land, which it is alleged should have been paid by Markson, who had the possession of the land and received the rents thereof for the years 1875, 1876, 1877, 1878, 1879, 1880, 1881, and 1882, amounting to $ 3,350; that after the sale of the land was thus made there still remained due upon the plaintiff's judgment a balance of more than $ 9,000, which judgment is still in full force and unsatisfied. It is further alleged that Herman Markson, as administrator, has, at different times, and by four annual settlements made in the probate court of Leavenworth county, the first of which was dated May 6, 1876, the second July 30, 1877, the third August 1, 1881, and the fourth and last on September 4, 1882, acknowledged the receipt of the rents mentioned except the sum of $ 400 for the rent of 1882, which had not been paid at the date of the last settlement, but which was due and paid about December, 1882; that no final settlement of the estate has been made or attempted by said Herman Markson. It is further alleged that in these annual settlements Markson presented and had allowed certain charges against the estate, which amounted to $ 1,039.35. Plaintiff further states that several of the claims thus presented and allowed are not proper charges against the estate, and should not have been allowed as a credit out of the rents collected and received by Markson from said lands, each of which the plaintiff seeks to surcharge and falsify. The plaintiff further alleges that after Markson was appointed administrator of the estate, he took possession of the land belonging thereto, and received the rents and profits thereof, and sought and obtained an order of the probate court authorizing him to rent said land, and that during the time from 1875 until 1881, he failed to pay the taxes upon the land, which amounted to $ 1,554.79, and that the interest and penalties accruing during that time upon the unpaid taxes amounted to $ 2,776.58, and that the taxes of 1882 on the land were $ 154.39, on which a penalty was charged of $ 7.71, all of which was paid by the sheriff of Leavenworth county out of the proceeds of the sale of the land; that a certain tract of twenty-eight acres with a value of $ 500, belonging to the estate, was not rented by Markson, nor did he pay the taxes thereon, but permitted it to be sold for the taxes of 1875, and permitted a tax deed to issue therefor, which was duly recorded, and the holder of such tax deed entered into possession of the land and still holds the same; that the taxes levied upon all of the lands from 1875 to 1882 were $ 1,584; that the interest, penalties and charges actually paid on the land were $ 2,784.29, being a total of $ 4,369.68, which was a lien upon the land, and for which it was subject to be sold, whereby the estate was damaged by the failure of Markson to pay the taxes out of the rents received, in the sum of $ 2,784.89. The claims which were presented against the estate and allowed by the probate court are set up in the petition, and it is alleged that they were each assigned to the fifth class. It is further stated that the persons in whose favor these claims were allowed are residents of Texas, and that the plaintiff is informed that their claims have been satisfied. It is further alleged that Markson holds the rents received by him, and refuses to pay the same to either the heirs of John J. Myers or to the creditors of the estate; and that he has refused to settle with the probate court, pretending and asserting that he does not know whether the rent so collected by him should be treated as property in his hands as administrator, or as a trustee for the heirs of John J. Myers; that the heirs of John J. Myers claim to inherit and own the rents received by Markson, and that the same is not subject to the payment of the plaintiff's judgment. He further alleges that until January, 1884, Markson had proposed to make an agreed case and submit to the court to decide to whom the money received for the rents ought to be paid, whether to the heirs-at-law or to the creditors, since which time he has declined to make such submission, and has refused to pay to the plaintiff any part of the money thus received by him, asserting that the money was due to the heirs-at-law, and that the plaintiff has no right or claim thereto, and also asserting that he is not holding the money as administrator; that he was not liable to pay taxes on the land out of such funds, and that he will not pay out said money until compelled to do so by a judicial determination. Plaintiff further avers that the said real estate and the rents thereof were needed to pay the debts of John J. Myers, deceased, and that Herman Markson has been guilty of misconduct in taking and holding said money, and that he has not fairly and impartially distributed and administered said estate.

The prayer of the petition is, that the judgment in favor of Kothman be first satisfied out of the funds in the hands of the administrator, and that he may be adjudged to pay to the plaintiff the sum of $ 3,400 so collected by him, with interest on the same from the time it was received; and for not paying the taxes on the land that Markson be adjudged guilty of a breach of his duty as trustee; and that the damage be assessed against him in the sum of $ 3,284.29, being interest, charges, and penalties, which were a lien and a charge upon said land while he had control and rented the same, as before set forth, with interest on that sum since December 16, 1882; and that the rights of the heirs-at-law of John J. Myers, deceased, be adjudged subject to the plaintiff's right; and that the defendants, who were not judgment creditors of John J. Myers, deceased, and whose claims have been presented and allowed by the probate court, be also adjudged not entitled to payment until the plaintiff's judgment shall be first paid and satisfied.

To this petition Herman Markson filed a demurrer, the grounds of which were: First, "The petition does not state facts sufficient to constitute a cause of action against him;" second, "The court has no jurisdiction of the cause of action;" third, "The petition shows on its face that the several matters and things set forth have been heretofore adjudicated between the plaintiff and defendant, or could or should have been." At the April Term, 1884, the cause was submitted to the court, and the demurrer of the defendant was sustained; to which ruling the plaintiff duly excepted, and brings the case to this court.

Judgment affirmed.

H. T. Green, for plaintiff in error.

H. W. Ide, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

In his petition the plaintiff refers to earlier litigation concerning the subject-matter of this action, and as much of the history of that litigation, and of the relations existing between the present parties, may be learned from the reported decisions of this court, reference is made to them. ( Kothman v....