Smith v. Kibbe

Citations

• 104 Kan. 159
• 178 P. 427
• 5 A.L.R. 483
• 1919 Kan. LEXIS 210

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Debts of Testator — How Paid. In the absence of a provision to the contrary in a -will, the debts of the testator are payable primarily out of the personal estate as the statute prescribes, and- if it is insufficient, resort may be had to the realty.</p> <p>2. Same — Debts Secured by Mortgage — How Paid. Where no other purpose is expressed in the will, it is the duty of the executor to pay a debt secured by a mortgage on real estate, the same as unsecured debts are payable, if there are sufficient funds for that purpose in his hands.</p> <p>3. Same — Mortgage Debts — Duty of Executor. If the executor fails to follow the statutory rule requiring him to pay such debt out of the personalty, the devisee of the real estate may maintain an action to require him to exonerate the real estate devised, by discharging the mortgage debt out of the personal estate.</p> <p>4. Conveyance — Assumption of Mortgage by Grantee — Option of Mortgagor. Where a grantee in a conveyance of land assumes and agrees to pay a debt secured by a mortgage upon land, and it forms a part of the purchase price of the land, the mortgagee may accept him as a debtor or he may rely alone upon the mortgage to meet the obligation.</p> <p>5. Same — Assumption of Mortgage — Liability of Grantee. A sale of the land so incumbered, by the grantee to another, in which the other agrees to assume and pay the mortgage debt, makes the latter personally liable for such debt, if his grantor was himself liable for it.</p> <p>6. Same. Under the facts stated in the findings herein, it is held that the first grantee was personally liable for the mortgage debt, and the second grantee, who assumed its payment, was likewise liable.</p> <p>7. Same — Effect of Acceptance of Payments from Grantee. The acceptance of payments of interest'and of principal upon the mortgage debt by the owner of the debt is sufficient to constitute an acceptance of the payor as his deb