Finch v. Magill

Supreme Court of Kansas

Finch v. Magill

37 Kan. 761

DecidedJuly 15, 1887

StatusPublished

This text of 37 Kan. 761 (Finch v. Magill) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Finch v. Magill, 37 Kan. 761 (kan 1887).

Pincite

Opinion

Opinion by

Clogston, C.:

The facts as found by the court show that one J. W. Sharp was the patentee of the land, and that he conveyed the same to W. A. Arnold, and in part payment therefor received a note for $1,500, secured by mortgage on the land; that on the 7th day of October, 1870, Arnold and wife conveyed by the instrument attached to defendant’s answer, being exhibit “A,” the east half of the land in controversy to the defendant, for a consideration of $1,000, $250 cash, and $750, with interest, to be paid on the mortgage executed by Arnold and wife to Sharp. Defendant went into possession of the land, and retained possession until 1872, when defendant entered into a contract in writing for the sale and transfer of the land to John Q. White, but said contract was never of record. White took possession of the land, and remained in possession until about the first of January, 1875. The consideration of the contract between defendant and White was, that White was to pay the defendant $550, for which sum he executed his notes, and was also to pay the Arnold mortgage to Sharp of $750, which Finch had agreed to pay as purchase-money for the land. White abandoned the land, and the same remained unoccupied until 1881. Neither Finch nor White paid any part of the $750 on the Sharp mortgage, except one installment of interest, and one year’s taxes on the land. In 1874, Sharp brought an action to foreclose the mortgage, making Arnold and wife and John Q. White defendants. [764]*764A decree of foreclosure was entered, and the land sold thereunder, and was purchased by Sharp. Sharp, by will, conveyed the land to Davidson, who conveyed the land by deed to plaintiff. In 1881, plaintiff took and retained possession of the land, and made valuable improvements thereon. The land, at the time of the foreclosure, was of the value of $1,200; it is now of the value of $2,500.

Defendant now claims that he was not made a party to the foreclosure proceedings in the suit by Sharp; that he still has a title and interest in the land, and a right to redeem from the mortgage. Tt will be remembered that White was in possession of the land at the time of these foreclosure proceedings, under some contract in writing, and that he had executed his notes for the balance of the purchase-money after deducting the Sharp mortgage. What the nature of this written instrument was is not clearly shown by the evidence. In fact, the only evidence given of this instrument was by the defendant, and he testified that it was lost, and that he did not recollect what it contained, or whether it was signed by his wife, or acknowledged; but thought it was a contract to convey the land upon the payment of the purchase-money. The burden of establishing the character and nature of this instrument was upon the defendant. He had conveyed the land by some instrument to White; White was in possession, claiming title to the land. If this contract or deed, or whatever it was, was of the same character as the conveyance by Arnold to Finch, then it would have conveyed all the interest and right that Finch had to the land, and White would have been a necessary party in the foreclosure, but Finch would not be. This conveyance from Arnold to Finch was not an absolute conveyance; it was coupled with conditions; it was only to become absolute and indefeasible upon the payment of this $750, and that was never paid; and in the absence of better evidence than that given by the defendant, we shall presume that the transfer of what right Finch had to the land was of as high a character as that received by him from Arnold.

Taking into consideration the lapse of ten years since the [765]*765sale of the land under the mortgage, its increased value, and the fact that the defendant paid no part of the mortgage debt, but seemingly abandoned the land, we do not think that he now ought to be heard to urge his right to redeem, when all the presumptions are against that claim. (Fowler v. Marshall, 29 Kas. 665.)

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

Clogston, C.:

The facts as found by the court show that one J. W. Sharp was the patentee of the land, and that he conveyed the same to W. A. Arnold, and in part payment therefor received a note for $1,500, secured by mortgage on the land; that on the 7th day of October, 1870, Arnold and wife conveyed by the instrument attached to defendant’s answer, being exhibit “A,” the east half of the land in controversy to the defendant, for a consideration of $1,000, $250 cash, and $750, with interest, to be paid on the mortgage executed by Arnold and wife to Sharp. Defendant went into possession of the land, and retained possession until 1872, when defendant entered into a contract in writing for the sale and transfer of the land to John Q. White, but said contract was never of record. White took possession of the land, and remained in possession until about the first of January, 1875. The consideration of the contract between defendant and White was, that White was to pay the defendant $550, for which sum he executed his notes, and was also to pay the Arnold mortgage to Sharp of $750, which Finch had agreed to pay as purchase-money for the land. White abandoned the land, and the same remained unoccupied until 1881. Neither Finch nor White paid any part of the $750 on the Sharp mortgage, except one installment of interest, and one year’s taxes on the land. In 1874, Sharp brought an action to foreclose the mortgage, making Arnold and wife and John Q. White defendants. [764]*764A decree of foreclosure was entered, and the land sold thereunder, and was purchased by Sharp. Sharp, by will, conveyed the land to Davidson, who conveyed the land by deed to plaintiff. In 1881, plaintiff took and retained possession of the land, and made valuable improvements thereon. The land, at the time of the foreclosure, was of the value of $1,200; it is now of the value of $2,500.

Defendant now claims that he was not made a party to the foreclosure proceedings in the suit by Sharp; that he still has a title and interest in the land, and a right to redeem from the mortgage. Tt will be remembered that White was in possession of the land at the time of these foreclosure proceedings, under some contract in writing, and that he had executed his notes for the balance of the purchase-money after deducting the Sharp mortgage. What the nature of this written instrument was is not clearly shown by the evidence. In fact, the only evidence given of this instrument was by the defendant, and he testified that it was lost, and that he did not recollect what it contained, or whether it was signed by his wife, or acknowledged; but thought it was a contract to convey the land upon the payment of the purchase-money. The burden of establishing the character and nature of this instrument was upon the defendant. He had conveyed the land by some instrument to White; White was in possession, claiming title to the land. If this contract or deed, or whatever it was, was of the same character as the conveyance by Arnold to Finch, then it would have conveyed all the interest and right that Finch had to the land, and White would have been a necessary party in the foreclosure, but Finch would not be. This conveyance from Arnold to Finch was not an absolute conveyance; it was coupled with conditions; it was only to become absolute and indefeasible upon the payment of this $750, and that was never paid; and in the absence of better evidence than that given by the defendant, we shall presume that the transfer of what right Finch had to the land was of as high a character as that received by him from Arnold.

Taking into consideration the lapse of ten years since the [765]*765sale of the land under the mortgage, its increased value, and the fact that the defendant paid no part of the mortgage debt, but seemingly abandoned the land, we do not think that he now ought to be heard to urge his right to redeem, when all the presumptions are against that claim. (Fowler v. Marshall, 29 Kas. 665.)

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.

Cite This Page — Counsel Stack

Bluebook (online)

37 Kan. 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finch-v-magill-kan-1887.

Opinion

Related

Cite This Page — Counsel Stack