The National Bank of Norton v. Duncan
| Citation | 87 Kan. 610,125 P. 76 |
| Decision Date | 06 July 1912 |
| Docket Number | 17,718 |
| Parties | THE NATIONAL BANK OF NORTON, Appellee, v. ELIZABETH DUNCAN et al., Appellants |
| Court | United States State Supreme Court of Kansas |
Decided July, 1912.
Appeal from Norton district court.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
HOMESTEAD--Alienation--Husband and Wife--Joint Consent. A homestead can be alienated or encumbered only by the joint consent of the husband and wife and when the title is in the wife the written consent of the husband to mortgage on certain conditions is not sufficient when such conditions are not accepted.
L. H. Thompson, of Norton, for the appellants.
J. R. Hamilton, of Norton, for the appellee.
The bank sued Duncan and wife to recover the balance on a note for $ 3000 and to foreclose a mortgage on their homestead at Norton which stood in the name of the wife. The petition alleged that on May 18, 1910, the defendants executed their promissory note for $ 3000 due in ninety days; that on that day the defendants orally and in writing agreed with the plaintiff to execute and deliver the mortgage; that but for such promise, on which plaintiff relied, the money would not have been advanced; that pursuant to such agreement Elizabeth Duncan did, on May 18, execute and deliver to plaintiff her real-estate mortgage, and that at that time J H. Duncan, in writing, by a letter agreed to join therein; that after he had received the $ 3000 he refused and neglected to join. The contents of a letter alleged to have been lost were also set forth, to the effect that Duncan wrote from Steamboat Springs, Colo., about May 15, that he had struck a great deal in horses and had bought sixty head and had drawn a sight draft for $ 3000 which he hoped the bank would honor The petition further alleged that on May 13 there was paid and credited on such indebtedness $ 2000, that afterwards Duncan overdrew his account in the sum of $ 667.89, and therefore judgment was prayed for $ 1667.89 and interest. The answer alleged that the property was the homestead of the defendants and that they had at no time jointly alienated or encumbered the same. The testimony, among other things, showed that before the transactions in question Duncan had gone to Colorado and left a note at the bank for $ 500 to cover any demands he then thought he might need in addition to a credit of nearly $ 200 which he then had. On May 18 he wired from Steamboat Springs to the bank to wire the bank there that his check was good for $ 3000 for three loads of horses, "letter coming." On the same date the bank wired and on the same day the cashier wrote that he was surprised at receiving the message, that if the bank had known before Duncan left that he wanted such a deal it could probably have been arranged for, but that upon such short notice it could not be done. The letter contained this sentence: "We are awfully sorry that matters are as they are but we can not help it." May 20 Duncan wired: May 21 the bank wired Duncan: "Tried hard to arrange to take care of your deal but can not do so." June 24 the bank cashier wrote that a consolidation had taken place and Duncan was requested to send draft for the amount of the overdraft and balance on note of $ 1690.99. On May 26 the cashier procured Mrs. Duncan to execute a mortgage dated May 18. This was eight days after writing Duncan that the deal could not be handled and five days after wiring him to the same effect. Mrs. Duncan testified that the next morning she received a letter from her husband that he had checked on the bank for $ 3000 and hoped they would take care of it; that she went over to the bank where the cashier told her that he had received a message to that effect, but said, "We can not possibly take care of him, we absolutely can not take care of him." She also testified that on the morning of the 27th she asked the cashier for the papers she had fixed up the night before and that if she had received her mail she would not have given them up, to which the cashier replied that he had sent them out the night before to Kansas City and would have to wire there to stop them. It appears further that Duncan, on finding that the bank would not honor his draft for $ 3000, sold an interest in his contract to a party at Steamboat Springs and thereby raised the $ 2000 which was forwarded to the plaintiff bank. It appears that the bank did, after all, honor the draft, though just when it is...
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