438 P.2d 957 (Kan. 1968), 44875, Beams v. Werth

Docket Nº:44875.
Citation:438 P.2d 957, 200 Kan. 532
Party Name:Bill BEAMS, Charles McDonald and Jimmy Rice, Trustees of the First Southern Baptist Church, Hays, Kansas, Appellees, v. Irene WERTH and Peter A. Werth, her husband, Appellants, and Freda Winters, a single person, Eleanor C. Wickizer and James Wickizer, her husband, and H. Schwaller and Sons, Inc., a Corporation, Appellees.
Case Date:March 09, 1968
Court:Supreme Court of Kansas

Page 957

438 P.2d 957 (Kan. 1968)

200 Kan. 532

Bill BEAMS, Charles McDonald and Jimmy Rice, Trustees of the

First Southern Baptist Church, Hays, Kansas, Appellees,

v.

Irene WERTH and Peter A. Werth, her husband, Appellants,

and

Freda Winters, a single person, Eleanor C. Wickizer and

James Wickizer, her husband, and H. Schwaller and

Sons, Inc., a Corporation, Appellees.

No. 44875.

Supreme Court of Kansas

March 9, 1968

Page 958

Rehearing Denied April 30, 1968.

Page 959

Syllabus by the Court

1. In an action to quiet title the trial court found generally in favor of the plaintiffs and entered judgment quieting their title. On appeal the record is examined and it is held: The trial court erred in that the plaintiffs failed to sustain the burden of proof in their quiet title action, and the trial court should have entered judgment quieting title to their adversary's property.

2. It is a fundamental rule in plane geometry that a straight line which is tangent to a circle merely touches the arc of such circle at one point, called the point of tangency, and such straight line can never be intersected by the arc of such circle.

3. Where the description in a deed to a tract of land bounded by three sides describes the third boundary line of such tract of land 'along a curve with a radius of Four Hundred Twenty-six (426) feet to intersect the section line between' two given sections at a point 426 feet South of the Northwest corner of Section 34, such description inferentially indicates the center point from which the arc is to be scribed.

4. In a quiet title action the plaintiff must rely on the strength of his own title, and not on the weakness of his adversary's title if the plaintiff is to prevail in the action.

5. Where mistakes are made in a deed describing the land conveyed through a series of conveyances originating with the common grantor of the parties, the plaintiffs in a quiet title action cannot, in an effort to have their adversary's deed construed, convert the action to one for the reformation of a deed on the ground that a mutual mistake was made between the parties to the original conveyance, more than thirty years prior to the commencement of the action, on the facts and for the reasons more particularly related in the opinion.

6. Where the plaintiffs in a quiet title action fail to sustain the burden of proof and show that the defendant against whom they are seeking to quiet title owns more property than the defendant actually claims, the subsequent testimony of such defendant that he is claiming only to a certain boundary line, which is less than the description in his [200 Kan. 533] deed conveyed, constitutes an admission against interest which is binding upon such defendant.

7. Where parties by mutual agreement fix a boundary line and thereafter acquiesce in the line so agreed upon, followed by

Page 960

possession according to the line so agreed upon, it must be considered as the true boundary line between them and will be binding upon the parties and their grantees.

8. Even though a line agreed upon by adjoining property owners be not exactly correct, it becomes the true dividing line between the lands by virtue of such an agreement, even if a subsequent survey should establish a different boundary line.

9. Under K.S.A. 60-208(e)(2) a party may state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both.

10. The court is not bound by an erroneous admission of law made by one of the parties in an action where no one is deceived and no prejudice results.

Lelyn J. Braun, Garden City, argued the cause, and Dale H. Corley, Garden City, was with him on the brief, for appellants.

Clayton S. Flood, Hays, argued the cause and F. F. Wasinger and Thomas C. Boone, Hays, were with him on the brief, for appellees.

SCHROEDER, Justice.

This is an action brought by the Trustees of the First Southern Baptist Church of Hays, Kansas, to quiet title to real estate, and a counterclaim brought by the defendants, Irene Werth and Peter A. Werth, her husband, to quiet title to real estate against the plaintiffs and all other defendants and for damages. The trial court after hearing the matter found generally in favor of the plaintiffs and entered an order quieting the plaintiffs' title as requested in their petition, following which appeal has been duly perfected to this court by the defendants, Irene and Peter A. Werth.

Prior to 1926 Henry E. Winters, the common grantor in this case, owned the Northwest Quarter of Section 34, Township 13 South, Range 18 West of the 6th P. M. in Ellis County, Kansas, which is located near the city of Hays.

In 1926 Henry E. Winters sold a portion of the land at the Northwest corner of the quarter in question to Ellis County for road purposes. Formal conveyance of such tract to Ellis County was [200 Kan. 534] not made until 1932. About eight months after this conveyance, Ellis County conveyed to Oscar Geyer and Frances Geyer, his wife, and S. S. Chittenden and Myrtle Chittenden, his wife, who in turn conveyed the property to Irene Werth of Ellis County on the 10th day of April, 1937.

In 1926 after the sale of the tract by Henry E. Winters to Ellis County, the county engineer of Ellis County set stakes on a curve at the Northwest corner of the section to indicate the dividing line between the Winters' property and the tract conveyed to Ellis County. After the stakes were put in place, Oscar A. Struble, tenant of Henry E. Winters, set fence posts and constructed the fence in question along the curve as staked out by Ellis County, and he placed fence posts wherever there were stakes. Mr. Struble farmed the remainder of this quarter for about forty years and kept up the fence between the Winters' and Werths' properties. The county engineer prepared the description of the property in the deed by which Henry E. Winters conveyed to Ellis County. The same description was used in all subsequent conveyances in the chain of title by which the Werths ultimately acquired their title. The description by which these conveyances were made reads as follows:

'Beginning at the Northwest Corner of Section Thirty-four (34), Township Thirteen (13) south, Range Eighteen (18), west of the 6th P. M., thence east Four Hundred Twenty-six (426) feet along the section line between Sections Twenty-seven (27) and Thirty-four (34), Township Thirteen (13), Range Eighteen (18), thence southwesterly Six Hundred Twenty-four (624) feet along a curve with a radius of Four Hundred

Page 961

Twenty-six (426) feet to intersect the section line between sections Thirty-three (33) and Thirty-four (34), in township Thirteen (13), Range Eighteen (18), four Hundred Twenty-six (426) feet south of the Northwest corner of said Section Thirty-four (34), thence North Four Hundred Twenty-six (426) feet along the line between said Sections Thirty-three (33) and Thirty-four (34) in township thirteen (13) south, Range Eighteen (18) west of the 6th P. M., to the place of beginning.' (Emphasis added.)

In an effort to present a confusing situation with as much clarity as possible, a sketch is set forth here. Except for certain

Page 962

additions hereafter noted, this sketch is identical to plaintiffs' Exhibit 1 prepared by John W. Smith, one of the plaintiffs' expert engineering witnesses, on the 21st day of January, 1966. The letters, A, B, C, D, X and Y, encircled; the names, Werth and Church, and the arc scribed on a 426-foot radius from the center point A (arc BYD), have been added.

[200 Kan. 535] On the 16th day of March, 1959, Henry Schwaller of Hays purchased by contract the Northwest Quarter of Section 34, heretofore described (with two exceptions), containing approximately 151.1 acres for $1,000 per acre from the heirs of Henry E. Winters.

The only exception to the conveyance of the Northwest Quarter of Section 34 material to this litigation is the property described as the Werth tract, the description of which was changed in a supplemental agreement between the parties to the Schwaller contract to read:

'Beginning 426 South of the Northwest (NW) corner of the Northwest Quarter (NW/4) of Section Thirty Four (34); thence Northeasterly along a [200 Kan. 536] curve of 426 radius, said radius point falling in the aforementioned NW/4, to a point on the North line of Section 34, 426 East of the Northwest (NW) corner of the NW/4 of Section 34; thence 426 West to the Northwest (NW) corner of Section 34; thence 426 South, along the West Section line of Section 34, to the place of beginning.'

The supplemental agreement thereupon further read: 'and the deed of conveyance from First Parties to Second Party for said real estate shall describe the same in such manner.'

It should be noted the description of the Werth tract excepted from the conveyance was changed, under Schwaller's supervision, to exclude reference to the length of the curve as 624 feet, and it also designated that the radius point fall 'in the aforementioned NW/4' (Emphasis added), although Henry Schwaller in his testimony denied having any knowledge that a discrepancy existed in the description, and that he did not learn of it until after the Church took title and had started to build. He testified that John W. Smith informed him the descriptions in the deeds to the respective properties 'did mesh.'

John W. Smith testified that as a result of his survey the measurements, shown in the legal description of the Werths' deed, indicated that the curve line constituting the third dimension of the Werth tract did not correspond with the alleged boundary line fence, and that this discrepancy was well known to Henry Schwaller prior to the conveyance of the...

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