The Mid-West Lumber Company v. Wagner

• Decision Date: 03 July 1931
• Docket Number: 29,631
• Parties: THE MID-WEST LUMBER COMPANY, Appellee, v. HATTIE WAGNER and NICK WAGNER, Appellants
• Court: Kansas Supreme Court

300 P. 1067

133 Kan. 405

THE MID-WEST LUMBER COMPANY, Appellee, v. HATTIE WAGNER and NICK WAGNER, Appellants

No. 29,631

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Thomas district court; WILLIAM B. HAM, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMESTEADS--Mortgage--Joint Consent. A mortgage on a homestead is not rendered invalid by the fact that the wife signed it some days after the husband did, and by the fact that the wife stated that she was not signing of her own free will and accord, where there is a finding of the trial court supported by evidence that there was no coercion and the wife signed at the request of the husband and the mortgage purports to be the joint act of both.

2. REFORMATION OF INSTRUMENTS--Mistake and Inequitable Conduct. The remedy of reformation of a mortgage is available where on account of the mistake of one party and the inequitable conduct of the other party the mortgage is given upon a different piece of real estate than was intended.

E. H Benson, of Colby, for the appellants.

W. H. Clark, of Hoxie, for the appellee.

OPINION

SMITH, J.:

This is an action to collect a note and to reform and foreclose the real-estate mortgage securing it. The plaintiff prevailed. Defendant appeals.

The facts are as follows: In 1923 appellants purchased blocks 1 and 2 in Havice's addition to the city of Rexford. They paid $ 500 cash and gave a mortgage on the two blocks for $ 500. The entire addition comprises just three blocks. Block 1 is triangular in shape and contains six acres. Block 2 contains a little less than an acre and is just west of block 1. Block 3 contains about one acre and joins block 2 on the north. Blocks 2 and 3 are irregular in size and there is no street or alley running east and west between them.

Soon after appellants acquired title to blocks 1 and 2 they started the erection of a home. They thought they were building on block 2. Later it was discovered that in fact they had made a mistake and had actually built on block 3. The title to this piece of real estate was in a man named Alex Leach. Later appellants acquired title to this block.

The basis of the claim in this case is for lumber furnished by appellee out of which the house in question was built. A lumberman's lien was filed and a short time thereafter the note and mortgage in question were given. Appellants knew that the house was built on block 3, but appellee did not know this. Notwithstanding that fact, appellants allowed appellee to prepare the note and mortgage on blocks 1 and 2 and signed it knowing it covered these two blocks and did not cover the block where the house stood. The reformation asked is that the mortgage be reformed so as to cover block 3 as well as blocks 1 and 2. This conduct on the part of appellants was the basis of the prayer for reformation. The court below reformed the mortgage so as to make it cover block 3 and decreed a foreclosure.

At the trial there was no dispute as to the amount of the judgment and that it was a valid and binding obligation of appellants. The only dispute is as to the validity of the mortgage.

Appellants depend on three grounds to defeat the action:

1. That block 3 is their homestead, could not be alienated except by joint consent of husband and wife, and no such consent was had.

2. That at the time appellee filed this suit it had been divested of its interest in the real estate in question by the foreclosure of the mortgage given for the purchase of blocks 1 and 2, which has been referred to heretofore in this opinion. Appellee was a party to that foreclosure suit and did not appear and defend or set up its mortgage.

3. That the evidence and files in the case completely refute the idea that appellants were guilty of either deceit or fraud in the execution of the mortgage in question, or that there was any mutual mistake of the parties thereto.

The facts upon which appellants rely to sustain their first proposition are that the mortgage was signed by Mr. Wagner several days before it was signed by Mrs. Wagner. When she went to sign it she was asked if she was doing it of her own free will and accord. She answered that she was signing, but not of her own free will and accord. She said in effect that she was only signing because she was tired of being nagged by her husband. The court below refused to find that this constituted an involuntary signing on her part and we agree with that conclusion. We are unable to find any evidence of duress being exercised on Mrs. Wagner. Appellants urge that the fact that Mr. Wagner signed the mortgage several days before Mrs. Wagner prevents the giving of the mortgage from being the joint act of Mr. and Mrs. Wagner. They cite a case where this court has held consent in such cases must be joint and simultaneous. (Bank v. Duncan, 87 Kan. 610, 125 P. 76, and cases cited.) They argue from these decisions that it is necessary that husband and wife should be side by side when a homestead is mortgaged. This contention was settled by this court in Gas Co. v. Ralston, 81 Kan. 86, 105 P. 430. There it was said:

"It is further claimed that the land was a homestead and the joint consent of the husband and wife was not obtained for a pipe-line right of way. The evidence can probably be so interpreted as to show a joint consent, both in point of time and intent. The wife consented and at the time she consented the husband had already consented and was then consenting, so that their consent joined in point of time, and their intent that the pipe line should occupy the land was identical. But whether or not this interpretation is justified by the evidence is not important, as there is evidence tending to show that the wife gave her...