Kremer v. Schutz
| Decision Date | 12 March 1910 |
| Docket Number | 16,431 |
| Citation | 82 Kan. 175,107 P. 780 |
| Parties | ELLEN P. KREMER, Appellee, v. WILLIAM SCHUTZ, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1910.
Appeal from Shawnee district court; ALSTON W. DANA, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
NOTICE -- Lessee of Land -- Lis Pendens -- Appeal -- Action for Rent. In a divorce proceeding the wife claimed a certain farm as her separate property, but the district court decided that it belonged to the husband. Upon an appeal the supreme court reversed that judgment and decided that the title to the farm was in the wife, and that the husband never had owned it. After the appeal had been taken the husband leased the land to another and collected the rent for the same. Held, in an action by the wife to recover from the tenant for the use of the land: (1) That the tenant was bound to know that an appeal had been taken from the judgment and therefore took his leasehold interest at the risk of a reversal of the judgment. (2) Although no supersedeas bond was given on the appeal the tenant was bound by the result of the appeal.
Z. T Hazen, and R. H. Gaw, for the appellant.
T. F. Garver, and R. D. Garver, for the appellee.
In this case Mrs. Ellen P. Kremer, the unquestioned owner of a farm, sues William Schutz to recover $ 200 for the use of the farm for the term of one year beginning March 1, 1907. Schutz entered into a contract with John L. Kremer on September 4, 1906, agreeing to pay him $ 165 as rent. John L. Kremer claimed ownership and the right to lease the land because of a judgment rendered by the district court on June 19, 1906, in a divorce proceeding, wherein the land was awarded to him but subjected to a lien in favor of his wife, Ellen P. Kremer. One of the important questions in that litigation was whether the land was the separate property of Ellen P. Kremer, and the judgment being adverse to her contention she took an appeal to the supreme court, and that tribunal, on June 8, 1907, reversed the ruling of the district court, holding that the land was the property of Mrs. Kremer, and directed judgment in her favor. (Kremer v. Kremer, 76 Kan. 134, 90 P. 998.) When she brought this action for the rent Schutz defended on the theory that the judgment of the district court in effect made John L. Kremer the owner, and that he remained the owner with the right to lease and collect rent until the judgment was set aside. He made the further contention that, no supersedeas bond having been given when the appeal was taken, he was not bound to take notice of the appeal. The trial court ruled that Mrs. Kremer was the owner of the property from the beginning, and that the payment of rent to John L. Kremer did not discharge the obligation of Schutz to pay the owner for the use of the farm and constituted no defense to her action for the rent. This decision must be upheld.
The result of the litigation demonstrated that Mrs. Kremer was the owner of the farm during the time it was occupied by Schutz and that John L. Kremer never owned it nor had any right to lease it. The tenant can not have any greater right than his landlord, and as Mr. Kremer had no title to the land he could not invest Schutz with any right to its use, nor could a payment to one not the owner release the tenant from his liability for rent to the real owner. When the divorce proceeding was begun, in which Mrs. Kremer made a distinct claim to the land as her separate property, it was lis pendens as to one who leased or otherwise acquired a right in the land during the litigation. (Civ Code, § 81; Gen. Stat. 1901, § 4515; Wilkinson v. Elliott, 43 Kan. 590, 23 P. 614; Garver v. Graham, 6 Kan.App. 344, 51 P. 812.) While the judgment of the district court awarding the land to John L. Kremer was what is termed a final judgment, it was subject to appeal, and an appeal was in fact taken from the judgment before the lease was executed. In contracting for the use of the land on the basis of that judgment Schutz was bound to know that it was subject to appeal and that an appeal had been taken. The litigation had not ended in the rendition of the judgment, and although it may have seemed to Schutz that Mr. Kremer might ultimately win he still took the risk of a reversal and of the final outcome of the litigation. In Dunnington v. Elston, 101 Ind. 373, the same rule was announced. Piggott, who had obtained a judgment in an action of ejectment against Elston, leased the land involved to Dunnington after the rendition of the judgment and before an appeal was taken which subsequently resulted in a reversal. Dunnington claimed that he purchased...
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Weston v. McBerry
...only be terminated by a final decree. (Emphasis supplied). The Supreme Court of Kansas wrote to the same effect in Kremer v. Schutz, 82 Kan. 175, 107 P. 780, 781 (1910). When the divorce proceeding was begun in which Mrs. Kremer made a distinct claim to the land as her separate property, it......
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