Miexsell v. Walton , 49 Kan. 255 ( 1892 )

Opinion by

Simpson, C.:

On the 31st day of May, 1887, Frank W. Miexsell and John B. Wood, who then lived at Wellington, Sumner county, made to Horace Miexsell, who lived at Scott City, in Scott county, a deed to lot 12, in block 5, in Scott City. This conveyance was made as a matter of convenience, and to enable Horace to convey to persons with whom, as agent of Frank Miexsell and John B. Wood, he .had made a contract to sell and convey. Horace, being in financial trouble, deeded the lot to Walton, the defendant in error, to avoid any attempt on the part of his creditors to interfere with it. The facts are, that Horace had made a conditional sale of said lot for Frank Meixsell and Wood, and had received $200 cash on the sale, the balance of the purchase-money to be paid in two installments — $500 due January 6, 1888 and $500 due July 6, 1888; the $200 paid to be forfeited if subsequent payments were not made promptly. The deed to Horace from his brother and Wood was made on the 31st day of May, 1887, and filed for record at 11 o’clock A. M., June 7, 1887. The deed from Horace Miexsell and wife to Walton, the defendant in error, was executed on the 7th day of June, 1887, but not filed for record by Walton, who was register of deeds of Scott county, until the 3d day of October, 1887. In January, 1888, Horace Miexsell wanted Walton to deed the lot back to him, but Walton refused to do so until Horace and wife executed to him a note, secured by a mortgage on said lot, for the sum of $230, due June 1, 1888. Horace assented to this and executed the note and mortgage, and Walton deeded the lot back to Horace on the 16th of January, 1888, and recorded the mortgage on the 16th of January. The pretended consideration for this mortgage is the receipt Horace gave the option purchasers for the $200 paid on their purchase, and $30 paid by Walton for the construction of a sidewalk in front of the lot. Walton swears that, at the time the deed to the lot- was made to him, he had purchased one-half- of the option, and subsequently bought the other half. He also swears that he told Horace, when Horace had financial trouble, that he ought to deed the lot to some one. Walton commenced this action to foreclose the mortgage executed by Horace and his wife. The case was tried by the court, a jury being waived, and a judgmeut rendered in favor of Walton for the full amount of the note and mortgage.

The case is here for review, and it is claimed that the evidence is not sufficient to sustain the judgment. The following facts are established, and the evidence sustaining them is uncoutradicted: The sale of the lot by Horace, as the agent of his brother and Wood, was a conditional one. The deferred payments were to be promptly met, or the cash payment of $200 was forfeited. Walton, at the time he took title by the deed of Horace and wife, knew the conditions of the sale, because he had bought a one-half interest in the contract. Walton knew that Horace had title from his brother and Wood, because that deed was filed for record by him, as register of deeds, on the 7th day of June, 1887, on the same day that Horace and wife executed a deed for the lot to him, but his deed was not filed for record by him until the 3d day of October, 1887, long after the first deferred payment was due and unpaid, and hence, by the terms of the sale, the $200 cash payment was forfeited. Walton’s knowledge of these things is sufficient to show that he did not take the mortgage in good faith and on the strength of any legal or equitable claim to be reimbursed of the $200 payment. This is enough to authorize us to recommend a reversal of the judgment.

It is recommended that the judgment be reversed, and a new trial ordered.

By the Court: It is so ordered.

All the Justices concurring.