Larrick v. Jacobson

• Decision Date: 05 May 1934
• Docket Number: 31643.
• Citation: 139 Kan. 522,32 P.2d 204
• Parties: LARRICK v. JACOBSON et ux.
• Court: Kansas Supreme Court

32 P.2d 204

139 Kan. 522

LARRICK v. JACOBSON et ux.

No. 31643.

Supreme Court of Kansas

May 5, 1934

Syllabus by the Court.

Intentional concealment of vital matter to accomplish given purpose may constitute misrepresentation amounting to fraud.

In action to foreclose mortgage against homestead, evidence supported findings that nature of instrument was intentionally not disclosed to wife, and that mortgage was not jointly executed by husband and wife.

Wife's lack of experience as to method of mortgaging land, lack of knowledge of legal description of homestead, failure to read mortgage or have it read, and husband's failure to properly inform her, held not to deprive wife of defense of want of joint consent to execution of mortgage against homestead, where interested mortgagee intentionally did not disclose fact that mortgage covered homestead.

Cross-appeal may be informally taken by notice to adverse party at any time before case is assigned for hearing in appellate court and questions sought to be reviewed may be presented with other matters discussed in briefs (Rev. St. 1923, 60--3314).

Trial court must determine from pleadings whether or not case shall be tried by jury (Rev. St. 1923, 60--2903).

In action on note and to foreclose mortgage against homestead wherein defense was interposed that mortgage was not procured by joint consent of husband and wife, refusal of jury trial to defendants held not error, under pleadings (Rev. St. 1923 60--2903).

1. An intentional concealment of a vital matter to accomplish a given purpose may be a misrepresentation amounting to fraud as much as an assertion of what is false.

2. Where the trial court found from the evidence which was sufficient, if believed, that, when the wife signed the mortgage on her homestead, she believed she was signing a mortgage on land her husband was purchasing from his brother for whom the plaintiff was agent, that the brother was indebted several hundred dollars to the local bank of which the plaintiff was the managing officer, that the plaintiff at the time the mortgage was executed intentionally did not disclose to the wife the fact that the mortgage covered her homestead, that the mortgage was not executed with the joint consent of the husband and wife, and that there was no fiduciary relationship between the plaintiff and either the husband or the wife, such findings will constitute a sufficient basis for the conclusion that such mortgage of the homestead was not jointly executed by the husband and wife, that it was void, and foreclosure thereof should be denied.

3. The lack of information and experience of a wife as to the method of mortgaging land, and the knowledge of the legal description of her homestead, and her failure to read the morgtage or have it read to her, and the failure of her husband to properly inform her, will not deprive her of the defense of want of joint consent in the execution of the mortgage on her homestead when the plaintiff, being interested in the matter of obtaining the mortgage, intentionally did not disclose to her when she executed the mortgage that it covered her homestead.

Appeal from District Court, Smith County; W. R. Mitchell, Judge.

Action by J. E. Larrick against Frank Jacobson and wife. From part of the judgment adverse to him, the plaintiff appeals.

Judgment affirmed.

F. W. Mahin, of Smith Center, and H. McCaslin, of Osborne, for appellant.

A. W. Relihan and T. D. Relihan, both of Smith Center, for appellees.

HUTCHISON Justice.

This is an action by the plaintiff to recover a personal judgment against the defendants, husband and wife, upon a note and to foreclose the mortgage securing the same.

The separate answers of the defendants admit the signing of the note and mortgage, but both of them allege they were signed through fraud and misrepresentations of the plaintiff; the answer of the wife especially alleging in detail that she was led to believe and did believe, because of the acts, conduct, and representations of the plaintiff, that the mortgage she was signing was on a farm her husband was purchasing from his brother through the plaintiff, and was not a mortgage on their homestead. The reply to both answers was a general and a specific denial.

The trial court made findings of fact and conclusions of law and rendered judgment for plaintiff against defendants on the note, but declined to foreclose the mortgage, setting it aside as void and canceling it because it had not been executed by the joint consent of the defendants which was necessary in a mortgage of a homestead. Plaintiff asked to set aside three of the findings of fact and one of the conclusions of law and asked for judgment for plaintiff on the remaining findings, and filed a motion for a new trial, all of which were overruled, from which adverse judgment and rulings the plaintiff appeals.

The first four findings state the facts as to the existence and description of the defendants' homestead of eighty acres and the negotiations of the husband to purchase the one hundred acre farm of his brother through the plaintiff, the managing officer of the local national bank, to which the brother was indebted for several hundred dollars. The remaining findings of fact and conclusions of law are as follows:

"Findings of Fact.

"5. Prior to November 26th, 1930, the date of the note and mortgage sued on in this action, it was suggested to the defendant, Laura Jacobson, that a mortgage on the homestead of she and her husband might be required to secure the $2000.00, balance to be paid on the William Jacobson land. This suggestion was made either by the plaintiff or the defendant, Frank Jacobson to the defendant, Laura Jacobson, when all three were present. Laura Jacobson at this time told the plaintiff and the defendant, Frank Jacobson, that she would not sign a mortgage on the homestead for the balance of the purchase price on the William Jacobson land.

"6. On November 26th, 1930, at the time the defendant, Laura Jacobson, signed the note and mortgage in question, she believed she was signing a mortgage on the William Jacobson land. She had never made or executed a mortgage or deed and was not familiar with the method of mortgaging or transferring the title of real estate, neither did she know the legal description of their homestead, and was unable to ascertain by the description of the land in the mortgage in question whether or not it was a description of the homestead of herself and her husband That said mortgage was not read to the defendant, Laura Jacobson, and she did not read it herself, nor was she told by the plaintiff or the defendant, Frank Jacobson, that it was a mortgage on the homestead of herself and Frank Jacobson, and believing that it was a mortgage upon the William Jacobson land, she signed said mortgage to secure the note sued on in this action.

"7. That the mortgage in question in this suit was not executed with the joint consent of the defendants in this action.

"8. The Court will make the additional finding that no fiduciary relationship has been established by the evidence in this case between the plaintiff and either of the defendants.

"9. On the question of fraud the Court finds that none of the allegations or claims of fraud have been proven, except the fact that the plaintiff at the time of the execution of the mortgage and note in question in this suit, intentionally did not disclose to the defendant, Laura Jacobson, the fact that the mortgage in question covered the homestead of the Jacobsons.

"Conclusions of Law.

"1. Plaintiff is entitled to judgment upon the note sued upon in this action against each of the defendants for the sum of $2454.30 with interest at 8 percent and the costs of this action, and judgment is hereby entered against each defendant for said sum, and the costs of this action.

"2. That by reason of the fact that the mortgage in question was not jointly executed by the defendants herein, it is void, and foreclosure of the same is hereby denied."

The appellant complains that the question of the joint consent to the execution of the mortgage was not an issue in the case, and that there was no basis in the pleadings or procedure of the case on which finding No. 7 and conclusion No. 2 of the trial court could rest. In the answer of the defendant Laura Jacobson is the following sentence: "*** That she never at any time knowingly executed a mortgage to the plaintiff or to any other person upon said homestead eighty described herein. ***"

In the opening statement of the attorney for defendants occurs the following language: "I think the evidence will show that she never at any time consented to the alienation of her homestead, either in writing or orally ***" and in the ruling of the trial court on the plaintiff's motion for judgment on the pleadings and the opening statement of counsel for defendants we find the trial court used the following expression: "There is an issue of fact raised as to the question as to whether there was a joint alienation of the homestead. ***" We think these three statements were sufficient to fully apprise the plaintiff that joint consent was an issue in the case and to justify such a finding thereon as the evidence would support.

It is the contention of the appellant that finding No. 9 is expressly a finding against any alleged fraud, because the intentional failure to disclose the nature and contents of the instrument to be signed could not constitute fraud, and that the second conclusion of law excludes fraud as any basis for such conclusion. To support this contention appellant cites among others the following Kansas cases: Ferguson v. Nuttleman, 110 Kan. 718, 205 P. 365; Roach v Karr, 18 Kan. 529, 26 Am.Rep. 788; Elliott...