Cates v. Munsell

The opinion of the court was delivered by

Marshall, J.;

The plaintiffs commenced this action to set aside a tax deed conveying certain real property in Morris county to the defendant Dicae A. Munsell. The defendants answered denying any title in the plaintiffs and alleging title in defendant Dicae A. Munsell. Judgment was rendered setting aside the tax deed, decreeing that the plaintiffs were the owners of the premises, subject to a life estate in Francis E. Munsell, and quieting the title of the plaintiffs against the defendants, subject to that life estate. The defendants appeal. Findings of fact and conclusions of law were made as follows;

“April 26, 1904, Oliver S. Munsell, being the owner of section 25, in township 15, range 7, Morris county, Kansas, conveyed said premises to Clara B. Munsell, his wife, and Francis E. Munsell, by an instrument offered in evidence, as plaintiffs’ exhibit E. By the terms of said instrument, the grantees became trustees, and among other things said trustees, upon the death of the grantor, were to hold said premises for the benefit of persons named in the will and codicil thereto of the grantor, and if necessary to execute such conveyances as might be necessary to make conveyances to cany out the terms of said will and codicil.

“The grantor died; his will and codicil thereto were duly probated. By the terms of said will an inalienable life estate in the above-described premises was devised to Francis E. Munsell, with reversion and succession to the legal heirs of his body, share and share alike.

“Francis E. Munsell had three heirs of his body, one of whom was James O. Munsell. The other heirs conveyed to James O. Munsell their interest in the premises in controversy. On July 6, 1916, Kate G. Munsell was granted a divorce from her husband James O. Munsell by the district court of Dickinson county, Kansas, and was by said court awarded all the right, title and interest of her husband in the premises in controversy.

“Just prior to said decree of divorce the First National Bank of Herington, Kansas, attached the premises in question as the property of James O. Munsell, and said premises were sold. Thereafter they were redeemed by the divorced wife of James O. Munsell for the sum of $4,058.62, the money therefor being furnished by the plaintiffs, and she conveyed the remainder estate in said premises to the plaintiffs.

“The owner of the life estate failed to pay the taxes against the premises for the years 1918 to 1922 inclusive, and a tax deed was issued therefor to Dicae A. Munsell, to whom Francis E. Munsell conveyed the premises.

“Said tax deed shows that said premises were bid in by the county treasurer and a tax deed issued therefor on the same day, and said deed fails to show the amount for which said premises were bid in, and that no notice of final redemption of said premises was published as by law provided.

“Conclusions op Law.

"The tax deed issued to Dicae A. Munsell is void, and any lien for taxes is merged with the life interest óf F. E. Munsell, to which she claims to have succeeded.

“The plaintiffs are the owners of the premises in question, subject only to an estate during the life of Francis E. Munsell.

“That the title of the plaintiffs to said premises, subject to an estate during the life of Francis E. Munsell, should be quieted against all the parties defendant in this action.”

The attachment suit was by the First National Bank of Herington as plaintiff against J. O. Munsell as defendant. The writ of attachment was directed to the sheriff of Morris county and said:

“You are commanded to attach the lands, tenements ... of the above named defendant, J. O. Munsell, in this county.”

The sheriff’s return on the writ of attachment recited:

“By virtue of said order, I attached said real estate at the suit of the within named plaintiff.”

The journal entry of the judgment rendered on April 5, 1916, in the attachment action contained the following language:

“The court further finds that there is due from the defendant to the plaintiff, on both causes of action set up in plaintiff’s petition, the sum of $3,874.35. . . .

“The court further finds that the following-described real estate situated in Moms county, Kansas, has been attached in this action, to secure the payment of said sum . . . and that said attachment is in conformity with the statute in such case made and provided in all respects, and said attachment is sustained, and that the interest of the defendant ought to be sold to satisfy the claim of the plaintiff, . . . and that an order of sale should issue in this cause for that purpose.

“The court further finds that the interest of said defendant in said real estate is subject to the life estate of F. E. Munsell, and that after the termination of said fife estate the defendant will be the owner in fee of said real estate.

“It is therefore ordered, adjudged and decreed that the said J. O. Munsell is indebted to the plaintiff in the aforesaid sum of S3,87435, and that the plaintiff has an attachment lien on the interest of J. O. Munsell in said real estate, subject to the life estate hereinbefore mentioned. It is further ordered and adjudged and decreed that an order of sale issue out of the office of the clerk of the district court of this county to the sheriff of Morris county, Kansas, commanding him to sell all the right, title, and interest of the defendant in said real estate, subject to the life estate of F. E. Munsell, . . .”

The interest of James O. Munsell in the land was sold under that judgment. The record presented to this court does not show who was the purchaser. Other facts shown by the evidence were as follows: Charles H. Munsell, James O. Munsell and Edwin G. Munsell were the children of Francis E. Munsell. There were no children of deceased children. On April 7, 1926, Francis E. Munsell and his wife executed a warranty deed conveying the real property to Dicae A. Munsell, the wife of Charles H. Munsell. The present action was commenced May 12, 1926. Francis E. Munsell was the president of and the principal stockholder in the First National Bank of Herington, the plaintiff in the attachment action. That action was on two causes of action — one on a note for $910, dated February 26, 1914, signed by J. O. Munsell, given to the bank, and payment thereof guaranteed by F. E. Munsell. The other cause of action was on an account for $2,810.05 for money paid to various parties by Francis E. Munsell for James O. Munsell covering a period of time running from January 4, 1907, to June 1, 1914. That account was assigned to the bank by Francis E. Munsell shortly before the commencement of the action in February, 1916.

The part of the will of Oliver S. Munsell material for consideration at the present time read as follows:

“I hereby give, devise and bequeath to my son Francis E. Munsell, now of Herington, Kansas, an inalienable life estate in the following-described real estate lying and being in the county of Morris and state of Kansas, viz.:

“All of section twenty-five (25) in township fifteen (15) south of range seven (7) east, with all of its appurtenances, tenements and hereditaments, with reversion and succession, in fee simple, on his decease to the legal heirs of his body at the time of such decease, share and share alike.”

The plaintiffs contend that Francis E. Munsell and his privies are estopped to claim title to the real property as against them by reason of the attachment of the real property at the suit of the First National Bank of Herington. Was the defendant Francis E. Munsell estopped by the attachment, by the judgment in the attachment action, or by the sale of the property in that action?

In Ard v. Pratt, 61 Kan. 775, 60 Pac. 1048, this court said:

“One who causes an execution to be levied on land as the property of another necessarily affirms that such other has a salable interest in the land, and will not be heard to deny such interest and title when the owner sets up a claim that the property levied on is a homestead and exempt from sale upon execution.” (Syl. f 1.)

In the attachment action judgment was procured declaring that after the termination of the life estate of Francis E. Munsell, James O. Munsell would be the owner in fee of that real property. Francis E. Munsell is bound by that judgment. It estops him from doing anything that will defeat that ownership in fee after the termination of the life estate. To hold otherwise would permit Francis E. Mun-sell, through the bank of which he was president and principal stockholder, to sell the land on order of sale, bid it in for the full amount of the judgment, and then defeat the rights of the redeemer from the sale by deeding the land to another person. In other words, Francis E. Munsell, by that means, would not only get the redemption money but would also in effect keep the land.

It follows that the judgment should be and.it is affirmed.

Harvey, J., dissenting.