The American Investment Company v. Coulter

• Decision Date: 01 June 1899
• Docket Number: 195. [*]
• Citation: 8 Kan.App. 841,61 P. 820
• Parties: THE AMERICAN INVESTMENT COMPANY v. FLORA A. COULTER, M. R. LAUGHLIN, et al
• Court: Kansas Court of Appeals

61 P. 820

8 Kan.App. 841

THE AMERICAN INVESTMENT COMPANY v. FLORA A. COULTER, M. R. LAUGHLIN, et al

No. 195. ^[*]

Court of Appeals of Kansas, Southern Department

June 1, 1899

Opinion Filed June 19, 1899.

Error from Rice district court; ANSEL R. CLARK, judge. Affirmed.

STATEMENT.

IN November, 1887, George W. Barber and his wife executed and delivered to the plaintiff their promissory note for the principal sum of $ 550 and a real-estate mortgage to secure the payment of the note. The mortgage purported to convey land in Rice county, Kansas, but described it as being the west one-half of the southeast quarter of section 6, township 18, range 17, west of the sixth principal meridian. In March 1891, the mortgagors conveyed eighty acres of land, described as the west one-half of the southeast quarter, section 6 township 18, range 7, in Rice county, by deed of quitclaim to William Coulter, jr., who in August of that year conveyed the tract to M. R. Laughlin by warranty deed. Neither deed made reference to any mortgage. At the time they made the said conveyance the Barbers owned no other real estate. In August 1892, the plaintiff discovered that by mistake the mortgage described the Barber land as being in range 17 instead of range 7, as intended. The land described in the mortgage would be more than forty miles west of the western boundary of Rice county. In an action to reform the mortgage by making the description to read "range 7," instead of "range 17," the mortgagors and Coulter and Laughlin were made defendants. Personal judgment was asked as against the mortgagors and Coulter, it being alleged that the latter bought the land with notice of the existence of the mortgage and that he had assumed the payment thereof. It was also alleged that Laughlin had actual notice of the existence of the mortgage, and that he was not a bona fide purchaser of the property.

In their answers, Coulter and Laughlin denied notice and knowledge of the alleged fact that the Barbers had ever attempted to place a mortgage on their Rice county land. After answering, Coulter died, and the action was revived against his wife, as administratrix of his estate, and his minor children. By agreement, the answer filed by the deceased was treated as the answer of the administratrix and of the minor defendants. The mortgagors did not answer or otherwise plead, but were sworn as witnesses for the plaintiff, which sought to prove by them that William Coulter, jr., had actual knowledge of the existence of the mortgage which was supposed to cover the land conveyed to him by the Barbers, and that he orally assumed and agreed to pay the mortgage debt as a part consideration for such conveyance. The court excluded this offered testimony, holding it to be within the inhibition of section 322 (now 333) of the code, which provides that "no party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person."

The plaintiff introduced in evidence the reception record, the general index, and the numerical index, as kept by the register of deeds of Rice county. From the reception record, it appears that on November 27, 1887, an instrument in writing from George W. Barber as grantor, to the plaintiff as grantee, was received for record. In addition to these facts, the general index disclosed that such instrument was a mortgage which conveyed the west one-half of the southeast quarter of section 6, township 18, range 17, and that the same was recorded in volume 32, at page 163. The numerical index, under the caption of the "southeast quarter of section 6, township 18, range 7," sets forth the foregoing data, except that under the head of "description of land" this entry appears: "West half (range 17)." The court rendered personal judgment against the mortgagors, and judgment for costs against the plaintiff as to the other defendants. The Barbers did not except to the entering of the said judgment and have not been made parties to the proceedings in error.

Judgment affirmed.

Keller & Dean, for plaintiff in error.

J. W. Brinckerhoff, for defendants in error.

OPINION

MILTON, J.:

A preliminary question arises on the motion filed by the defendants in error to dismiss the petition in error for the reason that the mortgagors were not made parties to the appellate proceedings. We think the motion ought to be overruled, as it appears that a reversal of the judgment in favor of the plaintiff might benefit but could not in anywise injure the mortgagors. The exclusion of the offered testimony of the mortgagors in respect to the alleged transaction between themselves and William Coulter, jr., deceased, whereby the latter orally assumed and agreed to pay the mortgage in controversy, is complained of by counsel for plaintiff in error in their brief, their principal contention being that the Barbers were not adverse parties in their relation to the other defendants. We are unable to agree with this view. While the mortgagors did not plead in the action, their interests were clearly adverse to those of Mrs. Coulter and her children. Had the offered testimony been received, its effect might have been to charge the decedent's estate with the primary liability for the payment of the mortgage debt, a result clearly advantageous to the mortgagors.

In the case of Shorten v. Judd, 56 Kan. 43, 42 P. 337, Mrs Mott, one of the defendants, testified in behalf of the plaintiff, her minor son, and at the same time in her own behalf, concerning a transaction or communication with William Judd, deceased, the executor of the decedent's will, being a party defendant. The court, after holding the reception of this testimony erroneous, said: "On account of this error the judgment must be reversed; but as Mrs. Mott has now disclaimed any interest, she will be a competent witness as to the alleged marriage, on the next trial." From the above decision, it appears that the words "adverse party," as used in section 322 of the code (Gen. Stat. 1889, P 4417, Gen. Stat. 1897, ch. 95, § 333), are not to be limited to the adversary positions of plaintiff and defendant, but affect any party, whether plaintiff or defendant, whose interests are actually adverse to those of another party to the action who appears in the capacity of an executor, administrator,...