Stoner v. Stoner
| Decision Date | 12 December 1931 |
| Docket Number | 30158. |
| Citation | 5 P.2d 847,134 Kan. 356 |
| Parties | STONER v. STONER et al. (MARTIN, Intervener). |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Terms of decree in divorce action held to provide for division of property, not allowance of alimony.
Clause in divorce decree dividing property, calling for payments by husband until amount due is paid, or death of wife, held nullity, and therefore decree is not void for uncertainty (Rev. St. 1923, 60--1511).
Wife's lien on husband's property for payment of future installments under divorce decree cannot be foreclosed for unmatured installments.
The terms of a decree in a divorce action considered, and it is held to provide for a division of property rather than an allowance of alimony, and that it is not void for uncertainty as to the amount allotted to each party.
In a division of property, where money is required to be paid in installments at fixed times in the future, and a lien on certain property to secure the payment of such installments is decreed, the lien cannot be foreclosed and enforced for installments which are not yet due and payable under the terms of the decree.
Appeal from District Court, Reno County; J. G. Somers, Judge.
Action by Lida Stoner against R. E. Stoner and others, wherein E. C Martin intervened. From the judgment rendered, defendant R E. Stoner and intervener E. C. Martin appeal.
Affirmed in part and reversed in part, and cause remanded.
J. S Simmons, Alva L. Fenn, and Max Wyman, all of Hutchinson, for appellants.
C. M Williams, D. C. Martindell, and W. D. P. Carey, all of Hutchinson, for appellee.
This action was brought by Lida Stoner against R. E. Stoner, the Fontron Mortgage Company, J. S. Simmons, and later E. C. Martin was made a party to determine existing liens on real property that was described. Judgment was given Lida Stoner, the plaintiff, and R. E. Stoner and E. C. Martin appeal.
There was no real controversy as to the liens of the Fontron Mortgage Company and that of J. S. Simmons, but a question was raised as to the validity and lien of a judgment previously rendered in a divorce action between R. E. Stoner and his wife, Lida Stoner. In that action, Stoner obtained a divorce from Mrs. Stoner, in which the court found that at the time of the marriage Mrs. Stoner had separate property, among which was $1,500 in the form of cash, which was restored to her. That R. E. Stoner then owned property of the value of $7,000 on which there is a mortgage of $1,000, leaving a net value of $6,000, and deducting the $1,500 restored to Mrs. Stoner, R. E. Stoner would still have $4,500, and one-fourth of that was given to Mrs. Stoner and three-fourths to Mr. Stoner. It was further decreed that Mrs. Stoner should also have certain articles of property, a bedroom suite, a sewing machine, cut glass, silverware, and wearing apparel which she had at the time of her marriage, and the balance of the furniture was given to R. E. Stoner; the total amount awarded to Mrs. Stoner, $2,625, it was adjudged, should be paid $1,000 in cash, the balance at the rate of $25 per month on the first day of each month without interest, until the balance of $1,625 is paid, or until the death of the defendant. It was further decreed that the balance of $1,625 should be a lien on the real estate owned by R. E. Stoner, but that he might place a mortgage on the property to raise the cash payment of $1,000. A list of the liens including mortgages, attorney's fees, taxes, and some other items, were specifically set forth in the judgment for divorce. The $1,000 cash payment was made at once, and several $25 monthly payments were made, but defaults were made on payments since July, 1930.
In the present action for the determination and enforcement of liens, the court found that the Fontron Mortgage Company held a first lien on the property amounting to $2,694 bearing interest at ten percent. per annum; J. S. Simmons had a second mortgage for $213; and that as R. E. Stoner had failed to make the payments as they became due, all of the remaining payments had become due, and it rendered judgment against R. E. Stoner in favor of Mrs. Stoner for $1,525 which constituted a third lien on the real estate. Of this part of the judgment, R. E. Stoner and E. C. Martin complain.
It appears that R. E. Stoner not only failed to keep up the payments due to Mrs. Stoner, but had failed to pay the taxes on the mortgaged property and had failed to pay the interest due on the first lien of the mortgage company. Upon the judgment, an order of sale was issued under which a sale of the real estate was made for the price of $4,000. To protect her third lien, Mrs. Stoner purchased the property at the price named, out of which taxes, costs, and prior liens aggregating $3,090.18 were paid, leaving less than $1,000 to be applied on the debt and lien of Mrs. Stoner in the amount of $1,525. The unpaid installments due from R. E. Stoner to his former wife at the time of the sale was $375, and at this time it is alleged to exceed $525. The contention of the...
To continue reading
Request your trial
-
Smith v. Smith
...same manner as other judgments (Haynes v. Haynes, 168 Kan. 219, 212 P.2d 312; Bassett v. Waters, 103 Kan. 853, 176 P. 663; Stoner v. Stoner, 134 Kan. 356, 5 P.2d 847; and Bourman v. Bourman, 155 Kan. 602, 127 P.2d Unless the appellant prevails on the basic premise that a default in the paym......
-
Haynes v. Haynes, s. 37619
...keep them from being enforced in the same manner as ordinary judgments. See Bassett v. Waters, 103 Kan. 853, 176 P. 663; Stoner v. Stoner, 134 Kan. 356, 5 P.2d 847; Bourman v. Bourman, 155 Kan. 602, 127 P.2d The decision in Sharp v. Sharp, supra, was promptly reaffirmed in two subsequent de......
-
In re Torline, 05-12251.
...of the delinquent parent when they are due and unpaid). 9. Bassett v. Waters, 103 Kan. 853, 176 P. 663 (1918). 10. Stoner v. Stoner, 134 Kan. 356, 5 P.2d 847 (1931); Wichita Fed. Say. and Loan v. North Rock Rd. Ltd. P'ship, 13 Kan.App.2d 678, 779 P.2d 442 (1989). 11. Wichita Fed. Say. and L......
-
Wichita Federal Sav. and Loan Ass'n v. North Rock Road Ltd. Partnership
...and future change while the judgment granted by the divorce decree to Jiminez against Brown was for a fixed sum. In Stoner v. Stoner, 134 Kan. 356, 5 P.2d 847 (1931), the district court, as a part of division of property, ordered Mr. Stoner to pay $1,625 to Mrs. Stoner at the rate of $25 pe......