McLean v. Webster

45 Kan. 644

• Court: Supreme Court of Kansas
• Decided: January 15, 1891
• Status: Published

Opinion

The opinion of the court was delivered by

HortoN, C. J.:

The contention of the minor, Charles McLean, through his guardian ad litem, is, that the amended petition did not state facts sufficient to give the district court jurisdiction of the subject-matter of this action, because the statutes of the state provide full and complete remedies in the probate court for the collection of all claims against the estates of deceased persons, and therefore that the probate court of Coffey county is vested with the exclusive jurisdiction of the subject-matter. "William McLean, the father of Charles McLean, died in Montana in 1882, leaving a will, by the terms of which he devised to his son, Charles McLean, the land attached and ordered to be sold. No letters of administration on the estate of William McLean, deceased, have been issued in this state, and no executor of his will has been appointed or recognized in this state. By the common law, the heir at law or devisee is personally liable for the debts of his ancestor to the value of the property received from him. (Rawle, Cov., § 309, pp. 514, 519, 522; 2 Greenl. Ev., §§ 356, 357; 4 Bac. Abr. 410; Gen. Stat. of 1889, ¶ 2592.) The original petition is essentially a bill in equity to enforce the claim and lien upon this land, and such purpose is fully shown. In Shoemaker v. Brown, 10 Kas. 390, 391, 392, it is said that—

i. case, ai-lowed. “The courts in chancery always had paramount jurisdiction over the estates of deceased persons, and generally had jurisdiction over all trust estates. Therefore, if the district courts of this state have full chancery powers in this respect, then they must have jurisdiction in cases of this kind. . . . The mere giving of jurisdiction to one court does not show that it must be exercised exclusively by that court. The constitution gives to the supreme court original jurisdiction in quo warranto, mandamus, and habeas corpus, (art. 3, § 3,) and also gives to the probate courts original jurisdiction in habeas corpus, (art. 3, § 8,) but still it has never been supposed that either of these courts had exclusive original jurisdiction in any of these matters, for the legislature has given such jurisdiction also to the district courts. . . . We think it could not have been intended by the legislature to limit in any respect the jurisdiction of the district courts by passing the acts conferring certain jurisdiction upon the probate courts. It was simply intended to confer such jurisdiction upon the probate courts, and to leave the other courts to exercise just such jurisdiction and powers as the other statutes had given or should give to them. The act concerning executors and administrators shows this. Sections 83 and 86 of said act show that it was not the intention of the legislature to confer upon probate courts exclusive original jurisdiction in suits against estates.”

This case is not like Fox v. Van Norman, 11 Kas. 214. In that case it was attempted to personally charge the widow of her deceased husband as an executor de son tort with the liabilities which attached at common law. This it was held could not be done under the statute.

' inherited— subjection to fSei™aehts. It is not shown or claimed that there were any other debts against the estate of William McLean, deceased, and the property attached is the only property of the decedent within this state. After the attachment, the action was in the nature of a proceeding to subject the land of the decedent within this state to the payment of the claim # ^ A J stated in the petition j therefore, in the absence of any administration, we cannot perceive any good reason for holding that the district court had no jurisdiction to hear and determine the subject-matter before it. “ Generally, while the estate is in the course of settlement in the probate court, the district court will not exercise its jurisdiction, and this for the reason that the jurisdiction of the district court in such cases is equitable only, and the parties have a plain and adequate remedy in the probate court.” (Gafford v. Dickinson, 37 Kas. 290; Kothman v. Markson, 34 id. 550; Stratton v. McCandless, 27 id. 306; Collamore v. Wilder, 19 id. 67; Johnson v. Cain, 15 id. 532.) The estate of William McLean, deceased, was not in the course of settlement in the probate court when this action was brought.

The next contention is, that the deed from William Me-Lean to Mehitable S. Webster is not a deed of general warranty, and, farther, that plaintiff below was never evicted from the land described in the conveyance to her. The warranty in the deed is in these words:

“And the said party of the first part and his heirs, the said premises in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, against the said party of the first part, his heirs and assigns, and against all and every person and persons whomsoever lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend.”

3. need — 'breaoii of warranty. This is a warranty of peaceable possession, and was broken by an eviction under a paramount title. The land was sold an(i conveyed on the 7th day of December, 1866, un(]er proceedings to foreclose a mortgage dated the 9th of September, 1859, which was prior to the deed from William McLean to Mehitable S. Webster, of the 24th of September, 1861; therefore the plaintiff below could not redeem except by paying the prior mortgage lien thereon. Under this lien she was deprived of all title, and a breach of the warranty in the deed occurred.

4 Eecoi-a of reoeeai’vIwenin evidence. The other contention is, that the trial court erroneously received in evidence several records from the office of the register of deeds of Coffey county to prove conveyances of the land deeded by McLean. It is urged that these records ought not to have been received in evidence until it was shown that the original conveyances were not in the possession or under the control of the plaintiff below. (Civil Code, §§372,387a; Gen. Stat. of 1889, ¶¶ 1136, 1137.) The deed from William McLean to Mehitable S. Webster, of the 24th of September, 1861, was a part of the amended petition, and as the answer was a general denial only, and not verified, its execution was admitted. The other records received in evidence were written instruments authorized by the statute to be recorded in the office of the register of deeds, the originals of which did not belong to plaintiff below. They hac| been executed to adverse or opposing parties. The presumption is that they were not in her possession or under her control. As nothing appears in the record to the contrary, the court committed no error in permitting the copies in the office of the register of deeds to be received in evidence.

Other matters are discussed in the brief, but they are unimportant and not even prejudicial.

The judgment of the district court will be affirmed.

All the Justices concurring.