Morgan v. Field , 35 Kan. 162 ( 1886 )

The opinion of the court was delivered by

Johnston, J.:

1. nojmy trial wben’ The ruling of the court refusing the demand for a jury trial made by P. J. Morgan is assigned for error. In his petition, Lyman Field set forth a promissory note and asked for a recovery of the amount due thereon, as well as the foreclosure of the mortgage executed to secure the same. If issue had been joined upon the demand for money, a jury trial should have been awarded, as' was decided in Clemenson v. Chandler, 4 Kas. 558; but no issue of fact was joined upon that question. The administrator of the estate of Dennis Morgan, deceased, made default. And the plaintiff in error did not deny the execution of the promissory note, nor question the right of the defendant in error to recover the amount claimed by him. The pleadings, therefore, admitted the allegations respecting the promissory note, and the right of defendant in error to recover judgment for the amount claimed, and left nothing to be tried except his right to have the mortgage foreclosed, and the lands sold in satisfaction of his claim. The issues joined between the defendant in error and P. J. Morgan were therefore purely equitable in their character, upon which a jury trial cannot be demanded as a matter of right. (McCardell v. McNay, 17 Kas. 434; Woodman v. Davis, 32 id. 344.)

2 Equitable satisiy mortgage. .The action of the court holding that the mortgage executed by Dennis Morgan in his lifetime should be foreclosed and the land sold in satisfaction of the claim for which the mortgage was given as security, is complained of. About six years before the execution of the mortgage the same laud was conveyed by Dennis Morgan to John G. Spivey, and by Spivey conveyed to P. J. Morgan. It is apparent, however, from the findings of the court, that the conveyance to Spivey was voluntary and against Spivey’s wish, and that the deed from Spivey and wife to P. J. Morgan was without any consideration, and that all of the parties to the conveyances intended that the real title and interest in the land should remain in Dennis Morgan. There was no actual transfer of the land by Dennis Morgan, nor did he part with its possession and control. The understanding of the parties was that the transfer was entirely nominal, and that the equita'ble title should be reserved to Dennis Morgan. Only a bare legal title was conveyed to P. J. Morgan, by whom it was to be held in trust for Dennis. It is true there was no express trust, the conveyance being absolute in form, and that something more than a mere parol agreement was necessary to create the trust and to reserve to Dennis Morgan the equitable title. It appears that, connected with the parol agreement or understanding, there were other facts and circumstances which it seems to us fully establish the trust. As we have seen, there was’no change of possession. Dennis Morgan continued to reside thereon, cultivate, and treat the land as his own from the time of the conveyance until his death, a period of more than eight years. During all this time the taxes thereon were paid by him, and he also plowed considerable of the land, planted and cultivated apple and peach trees thereon, and made other lasting and valuable improvements, treating it as his own in all respects, as he had done prior to the conveyance to his brother. Although P. J. Morgan resided in the immediate vicinity of the land, no claim was made by him to it; he never claimed rent nor offered to pay taxes, nor undertook to obtain possession; and the probate judge testifies that after the death of Dennis Morgan, when the plaintiff came to fake out letters of administration upon the estate of his brother, he admitted that the land in controversy was the property of the estate. It seems that soon after the deed was made to P. J. Morgan he returned the instrument to .his brother, and there is some ground for the claim of counsel for defendant in error that it was understood between the plaintiff in error and his brother that any claim which the former might have set up under his deed was extinguished by the return of the instrument. Under all the facts in the case, we cannot doubt that the full equitable title to the land was in Dennis Morgan when the mortgage was executed and at the time of his death, and that the same is subject to the payment of his debts.

We cannot sustain the objection of the plaintiff in error that the findings are not justified, as a careful reading of the testimony satisfies us that it sufficiently supports the result reached by the court. Nor can we disturb the judgment on account of the refusal of the court to restrict the cross-examination of the plaintiff in error.- It did take a wide range, but it must be remembered that it was an examination of a party to the action, and the other party to the transaction inquired about was dead.' Possibly some of the questions asked were somewhat remote from.the matters inquired about in the examination-in-chief, but they were mostly explanatory of the testimony given upon the direct examination, and as the trial was before the court alone, we do not think the plaintiff was prejudiced by the extended inquiry.

The judgment and decree of the district court will be affirmed.

All the Justices concurring.