Andrews v. Alcorn , 13 Kan. 351 ( 1874 )

The opinion of the court was .delivered by

Valentine, J.:

1.Attaching copies of notes. This was an action on two promissory notes and a mortgage. The judgment was in favor of the plaintiff, and the defendants now bring the case to this court. The petition did not contain a copy of either of the notes or the mortgage; no copy of either was attached to OT 1 • r 1 .V 1 or filed with the petition, and no reason was given why such copies were not furnished. (Code, §§ 118, 123.) But as no question was raised in the court below as to the necessity for such copies, and as no ruling of the court below upon any such question has been assigned for error in this court, no such question can now and for the first time be raised in this court, merely by a discussion of the question in the briefs of counsel. No such question can be' raised in the district court on demurrer.

2 Foreclosure of mortgage: Notes and mortgage constitute but one cause of action. The petition below was divided into three counts, headed respectively as follows: “ 1st cause of .action,” “ 2d cause of action,” and “3d cause of action.” The first count set forth the substance of one of said notes, which was then due, and stated a good cause of action. The second count set forth the substance of the other note, but did not state any cause of action, for the reason only that this note was not yet due. The third count set forth the substance of said mortgage, but probably did not state facts sufficient to constitute any cause of action thereon. The prayer for relief was just what it should have been, if the words “ 1st cause of action,” “2d cause of action,” and “3d cause of action” had been stricken from the petition, and everything else stated in the petition had been stated (as it should have been stated) in one count only. And the judgment was in accordance with the prayer for relief. The defendant Amey Andrews moved to require the plaintiff to elect upon which cause of action • he would proceed. The court overruled the motion. Said defendant then filed a demurrer, demurring separately to each and every count in plaintiff’s petition set forth, and assigned as grounds of demurrer that there were not facts sufficient stated in either of said counts to constitute a cause of action. The court overruled the demurrer. Now while we think that the court might properly have sustained' and perhaps ought to have sustained both said motion and said demurrer, (the demurrer however, only as to the second and third counts,) as a punishment to the pleader for negligently inserting the useless words, in fact worse than useless words, “ 1st cause of action,” “2d cause of action,” and “3d cause of action,” in his petition, yet we do not think that the court committed .any substantial error by overruling said motion and said demurrer. Only one cause of action was in fact stated in the whole of said petition. It is true, the first count taken alone stated a cause of action — an ordinary cause of action on a promissory note; but it is also true that the whole of the petition taken together (with these useless words stricken out,) stated only one cause of action — -an ordinary cause of action on two promissory notes, (one due and the other not yet due,) and a mortgage executed to secure their payment. While the facts stated in the first count constituted a cause of action, the facts stated in the other two counts (so-called,) simply modified and enlarged that cause of action, and as <all the facts stated in^ the whole petition constituted but one cause of action they should all have been stated in one count. We suppose the court below treated said useless words merely as surplusage, and in this the court perhaps may have erred; but, the error was slight, and as substantial justice was.done to all the parties, we shall not now reverse the judgment of the court below merely on account of such immaterial error. (Code, §§ 140, 304.)

5. Homestead; mfeiaMor£ aione. Said promissory notes were given for the unpaid, purchase-money of a certain piece of land. The mortgage was given on the same land, and at the time of the purchase thereof, to secure the payment of said notes. The defendants below also claim that the defendant Amey Andrews purchased the land with the intention of making it her homestead; that afterward she did make it her homestead; that said mortgage was executed by herself alone) without her husband, Jacob Andrews, the other defendant, joining with her in .its execution; and therefore they claim that said mortgage is void*. There are at least two answers to this claim. First, The mortgage was given for the unpaid purchase-money of the mortgaged premises at the time of the purchase. (Pratt v. Topeka Bank, 12 Kas., 570.) Second, Her intention to make said property her homestead was not her only intention. She also at the same time entertained the intention as expressed in her mortgage to pledge the property she was then purchasing as a .security for the unpaid purchase-money which she was to pay on her said intended homestead. Her intention to make the property her homestead was modified by her other intention to pay an honest debt contracted in obtaining her intended homestead. Both intentions can stand together and be enforced as really one intention; that is, the property can be held as her homestead subject to the payment of the purchase-money. She did not intend when she purchased the property, as the mortgage shows, to cheat and defraud the vendor out of the purchase-money. And she did not intend, as the mortgage shows, to make her homestead right paramount to the lien of the vendor which she expressly gave him on the property for the purchase-money. But her intention was, as the. mortgage shows, decidedly the contrary. It has already been decided in this court, that at any time before the property actually becomes a homestead, a lien, which could not be created on a homestead, may be created on such property the same as on any other property; and the fact that the property afterward becomes a homestead will not destroy. the lien thus previously created. (Bullene v. Hiatt, 12 Kas., 98.) And a vendor’s lien on real estate- may be created at the time of the purchase of the same, by the express contract of the parties to the purchase, and sale. (Smith v. Rowland, supra, 245.)

4. Notes and mortgage by wife. Interest of husband. The title to said property, after Mrs. Andrews purchased the same, was wholly in her. Her husband Jacob Andrews had no interest in the property except such as he might have by virtue of beiñg her husband, and by virtue of residing on and occupying the property as a home-s£eacp Mrs. Andrews alone executed said notes- and mortgage. The court below rendered a personal judgment against Mrs. Andrews for the amount due on the first note, but rendered no personal judgment against Jacob Andrews. The court however rendered a judgment against both of the defendants that the amount of the notes was a lien on the mortgaged premises, and that said premises should be sold free and clear of and from all right, tjtle and interest, of both of the defendants to discharge said lien, etc. Of this judgment the defendant Jacob Andrews now complains, and he complains merely on the ground that he was not a party to said notes or mortgage. Now he was in possession of the property, claiming it as his homestead, and was a proper party to the suit, and to the judgment; and he was made a party to the action on his own motion, after the suit had been previously commenced against his wife alone; and he had no interest in the property which could not be destroyed by a valid execution sale against his wife. In this state all property not exempt from execution or other final process may be sold at judicial sale. (Civil Code, §443.) And as we have before seen, this property, by virtue of being a homestead, is not exempt from sale under a judgment rendered for the unpaid purchase-money, and it is not claimed that it is exempt for any other reason. All right, title and interest of Amey Andrews may therefore be sold on execution or other final process, and such sale will divest Jacob Andrews of all his interest in the property, as he holds wholly under his wife. In this state, when the real estate of a husband or wife is sold at judicial sale, there is nothing left for the other to inherit or receive after the death of the one who owns the real estate. The rights of- husband and wife are precisely alike in this respect. (Gen. Stat., 395, ch. 33, § 28.) And'the statute clearly shows that the wife on the death of her husband obtains no interest in any real estate ever owned by the husband, if the same had previously been sold to pay his debts on any execution or other final process. (Gen. Stat., 393, ch. 33, §8.) Therefore, as the court below had a right to render a judgment against the wife, in whom the title to the property was vested, ordering the property to be sold free and clear from all right, title and interest held by the wife therein, we think it necessarily follows that the court also had a right to render a judgment against the husband, who held solely under his wife, ordering the property to be sold free and clear from all right, title and interest held by him in the property. Such a judgment would seem to be necessary to bar the husband’s homestead interest.

The judgment of the court below is affirmed.

All the Justices concurring.