Burke v. Johnson

Legal and Equitable Title; Property, not Subject to Attachment. On April 8, 1884, J. purchased from A. certain lands and personal property thereon belonging to A., and paid thereon a part of the purchase-money, and gave his promissory note for the remainder, payable one day after date, and received a contract from A. to convey the legal title to him upon payment of the note for the residue of the purchase-money. On April 9, B. commenced an action in attachment against A., and attached the property as the property of A.; and afterward, on the same day, J. paid the residue of the purchase-money, and received a deed of conveyance from A. to the property. At the time of the attachment B. had no notice of the sale by A. to J., and at the time of the payment of the note for the remainder of the purchase-money and the receiving of the deed to the property, J. had no actual notice of the action of B. against A., and of the attachment of the property. Held, That J., at the time the property was attached, was the equitable owner thereof, and that the naked legal title was held by A. only as surety for the payment of the residue of the purchase-money due thereon, and that the property was not subject to attachment by B. as the property of A.; and that the fact that B. had no notice of the purchase by J. could make no difference. And further held, That the payment by J. of the remainder of the purchase-money, and the receipt of a deed of conveyance of the property from A., without actual notice of the attachment, and his acting in good faith in the entire transaction, gave him the legal as well as the equitable title to the property.

Error from Johnson District Court. Action brought by Frank Burke against T. E. Armstrong. An order of attachment was issued therein, and the property in controversy attached as the property of Armstrong. J. B. Johnson, the defendant in error, interpleaded, claiming the property attached. Armstrong made default, and judgment was rendered against him and in favor of the plaintiff for $5,200. The cause on the interplea was submitted to the court, a jury being waived. Findings of fact and conclusions of law were made, as follows: “findings of fact. “1. On the first day of April, 1884, the said T. E. Armstrong was the owner in fee of the lands and tenements in controversy, as well as the owner of the goods, chattels, stock and personalty, in controversy; and on said day he gave written power and authority to one S. F. Coons to make a sale of said real and personal property, all and singular. “2. On the 8th day of April, 1884, said S. F. Coons, as ‘Frank Coons,’ executed and delivered to the said J. B. Johnson the following written contract of sale and to convey, all and singular, the said real and personal property, to wit: ‘“Spbino Hill, Kansas, April 8,1884. — Mr. J. B. Johnson has this day paid me the sum of eighteen hundred dollars —• forty dollars in cash to Mr. Armstrong in person, and his note due to Mr. Armstrong for seventeen hundred and sixty dollars, due one day after date — in full of purchase-price of the farm, now owned by T. E. Armstrong, of 113 acres, in Spring Hill township, Johnson county, Kansas, called the ‘Prank Burke’farm. Also, for all the stock and farming implements now on the farm, consisting of 28 hogs, with a lot of sucking pigs; 7 cows and heifers, and 1 bull; 1 four-year-old mare colt, and 1 four-year-old horse colt; a lot of chickens and turkeys ; a lot of corn in crib and some in the field; a lot of oats in crib and in stack ; 2 farm wagons and some old harness; a combined mower and reaper; 1 corn planter; 1 iron harrow ; 1 riding cultivator ; 1 walking cultivator ; 3 walking plows, and other agricultural implements. Mr. Johnson to take possession of the farm and stock, etc., forthwith, and he is to have a deed to the land (as soon as X can get it) from Mr. Armstrong, of Kansas City, Mo. Johnson is to pay the mortgages now against the land. (Signed) T. E. Aemsteong. By Pbank Coons, Agent.’ “3a. The said ‘Burke farm’ or lands and tenements which by written authority, executed by said Armstrong to said Coons on April 1, 1884, was authorized to sell, and which were intended to be and were sold, to said Johnson by the said Coons, in virtue of the written contract of April 8,1884, consists of and are as follows, to wit: The southeast quarter of the northwest quarter, and the southwest quarter of the northeast quarter, and the southwest quarter of the southeast quarter of the northeast quarter of section number fifteen, in township number fifteen, of range number twenty-three, in Johnson county, state of Kansas; also, outside lots Nos. 35, 36, 37, 38 and 39, and all that part of lot number forty lying south of the north line of the said ‘Frank Burke’ farm, in the town or city of Spring Hill, Johnson county, state of Kansas. “ 36. Pursuant to said contract of sale and to convey, the said J. B. Johnson took possession of said premises, and has been in actual possession thereof ever since. On April 10, 1884, said J. B. Johnson took actual possession of all of said real and personal property. “4. The consideration such sale and purchase was as follows, to wit: (1) cash $40, then paid by said J.B. Johnson to said Armstrong; (2) a promissory note given by said Johnson for the sum of $1,760, payable to said T. E. Armstrong (only), one day after its date, and dated April 8,1884 — being the day on which the said $40 cash payment was made; (3) the assumption of payment by said Johnson of a certain mortgage incumbrance, then on and against said lands and tenements, amounting to $1,700, and accrued interest thereon. “ 5. On the 8th day of April, 1884, the said Burke instituted a civil suit in this court against the said Armstrong, to recover the sum of $5,200 unliquidated damages; and an order or writ of attachment issued in said action against the real and personal property of said Armstrong, which said writ purports to have been issued by the clerk of this court, in said action, on the 8th day of April, 1884, and is under the seal of this court, and which said writ of attachment is made returnable in ten days from its date; and the sheriff’s return thereon indorsed shows that he received said writ on the 8th day of March, 1884, and. that on the 9th day of April, 1884, at two and one-half o’clock A. M., he levied the same upon all the real and personal property in controversy; and on the 11th day of June, 1884, said Burke obtained judgment against said Armstrong in said action upon constructive service, which judgment is now in force and wholly unsatisfied. “6. At the time of making the said levy there was a man (and his wife) occupying the building or dwelling house upon said premises, with whom the sheriff then left a duly-certified copy of the order or writ of attachment; said occupant’s name is Kohn Kuchner. “7. At the time of the issuance of said writ of attachment, as well as at the time of the levy thereof, the said Burke had no notice, actual or constructive (other than the law may give or imply in such cases), of the said sale and purchase between the said Armstrong and Johnson. “8. At the time of making said purchase, and receiving said contract of sale and to convey said premises, and the payment of said sum of $40, and giving the note for said sum of $1,760 to said Armstrong by said Johnson, the said Johnson had no notice, actual or constructive, nor any knowledge whatever, that said Burke had any ‘claim,’ or ‘rights,’ or equities in, of, or to the property in controversy, realty or personalty, nor any indebtedness of Armstrong to said Burke. “ 9. At the time the said Johnson took up said promissory note and paid the $1,760, balance of purchase-money to said Armstrong, and accepted the deeds to said premises, at Paola, Kansas, at about noon on the 9th day of April, 1884, the said Johnson had no actual knowledge or actual notice of any attachment having been levied upon said real and personal property, or either thereof, by said Burke or any other person, and he had no ‘constructive notice’ thereof other than the law implies from the records of this court, showing that an order of attachment had been issued in said action. “10. The deeds to and for said real property from said Armstrong and wife to said Johnson, pursuant to said written contract of sale and to convey, were delivered by said Armstrong to said Johnson, at Paola, Kansas, at about noon of the 9th day of April, 1884, at which time and place the said Johnson paid the said sum of $1,760 to said Armstrong. “11. Since the delivery of said deeds the said Johnson has paid all interest as it became due on said mortgages, and has paid all taxes lawfully assessed against said real and personal property.” “conclusions of law. “1. By reason of the execution and delivery of the written contract of sale and to convey said realty by said Armstrong, by his agent, Coons, and the payment of the purchase-price by money and promissory note, and assumption of the payment of all mortgages and incumbrances thereon then existing by said Johnson, as well by said Johnson’s possession of said premises, the entire equitable title passed to said Johnson, on the said 8th day of April, 1884, in, of, and to said lands and tenements. “ 2. The legal title (the naked fee) in, of, and to said realty remained in said Armstrong, in trust for said Johnson from the delivery of said contract of sale and to convey, from April 8,1884, until the deeds therefor were delivered to said Johnson by said Armstrong and wife, on the 9th day of April, 1884, at Paola, Kansas. “ 3. From the time of the delivery of said written contract of sale and conveyance to Johnson, as above stated, the said Armstrong had no leviable interest or estate in, of, or to said property as against the rights of said Johnson. “4. Said written contract of sale so delivered to said Johnson on the 8th day of April, 1884, passed the ownership of the personal property therein described unto the said Johnson as of that date. “5. Said Johnson’s rights and equities in and to the real and personal property in controversy are superior (and prior in time) to the rights and equities therein and thereto of the said Burke; said Burke’s lien, if any he hath, is subsequent in point of time and inferior in point of equity; and Burke having failed to garnish Johnson for the $1,760, balance of purchase-money due (and paid after the hour of the attachment levy), the said Burke has not any lien upon said fund. “6. The court finds for the interpleader, J. B. Johnson, and against the plaintiff, Frank Burke; and that the said J. B. Johnson is entitled to recover his costs against the said Burke in this behalf expended.” The plaintiff moved for a new trial on the ground that the conclusions of law are not sustained by the findings of fact. This motion was overruled on December 2, 1885, and judgment rendered for the interpleader, Johnson. The plaintiff Burke brings the case here.