Brummett v. Syfert ( 1926 )

Opinion by

STEPHENSON, C.

Leah E. Syfert was the second wife of AV. A. Brum-mett. The father of the wife conveyed the lot involved in this action jointly to the husband and wife. The owners executed and delivered their real estate mortgage thereon to the Standard Savings & Loan Association, to secure the indebtedness of $1,300. The indebtedness was for the cost of improvements made upon the property. W. A. Brum-mett conveyed his undivided one-half interest in the property, while the mortgage was existing, as a lien, to his children by a former marriage. Leah E. Syfert was later granted a decree of divorce from W. A. Brum-mett. A property settlement was entered into in connection with the divorce decree, wherein it was agreed by the wife that she would accept a conveyance of the husband’s undivided one-half interest in the property in lieu of the payment of alimony. The husband agreed to pay the mortgage indebtedness and certain taxes against the property, which he failed to do. AV. AV. Syfert, prior to marriage to Leah E. Syfert, paid the .indebtedness after the foreclosure proceedings • were commenced by the loan company, and received an assignment of the mortgage. He also paid taxes thereon, which AV. A. Brum-mett had promised to pay by his written agreement. AV. AV. Syfert was substituted for the Standard Savings & Loan Association as party plaintiff. Leah E. Syfert filed her cross-action, setting up the agreement with AV. A. Brummett, and further alleging that AV. AV. Syfert took the assignment of the mortgage and paid the taxes for her use and benefit. The cross-action further stated that it was necessary for the defendant to cause such payments to be made in order to save and protect her equity in the property. The court found the issue of fact in favor of Leah E. Syfert, and entered a judgment foreclosing the lien in favor of the lat- ■ ter and against AV. A. Brummett and his grantees, to secure the payment of the moneys advanced to Leah E. Syfert by AV. AV. Syfert. AV. A. Brummett has appealed from the judgment, and makes the point that the evidence is insufficient to support the judgment. The appellant states that AV. AV. Syfert paid out the sums of money in question before he was married to Leah E. Sy-fert ; that there was no obligation upon the part of AV. AV. Syfert to advance and pay the sums of money for Leah E. Syfert. It may be that there was no moral obligation for the payment of the money to protect Leah E. Syfert’s interest, but this is mot decisive of the question. It is sufficient that AV. AV. Syfert made such payments for the defendant in error. The agreement, or understanding, between AV. AV. Syfert and the defendant in error, in relation to the payments for the defendant in error, is mob in question here.

The plaintiff in error, for the reversal of (he judgment, mainly relies upon his contention that no obligation rested upon AV. AV. Syfert to advance the sums of money for Leah E. Syfert before his marriage to the latter. The evidence is to the effect that AV. AV. Syfert paid the sums of money in question for the benefit of the defendant in error. The plaintiff in error cannot sustain the question of law he presents on the record. The cross-action is in the nature of an equitable proceeding between Leah E. Syfert and W. A. Brammett. The grantees of W. A. Brummett did not appeal from the judgment canceling the deed to them.

The judgment' is affirmed.

By the Court : It is so ordered.

Note.—See under (X) 4 C. J. p. 900 § 2869; 2 R. C. L. 202 ; 1 R. C. L. Supp. p. 442; 4 R. C. L. Supp. p. 91; 5 R. C. L. Supp. p. 81. (2) 4 C. J. p. 1130 § 3122.