B & S Enterprises, Inc. v. Rudd

• Decision Date: 12 April 1958
• Docket Number: No. 40854,40854
• Citation: 182 Kan. 710,324 P.2d 515
• Parties: B & S ENTERPRISES, Inc., Appellant, v. Sam E. RUDD, Elenore Rudd, Leonard A. Levand and Celia Levand, Appellees.
• Court: Kansas Supreme Court

Page 515

324 P.2d 515

182 Kan. 710

B & S ENTERPRISES, Inc., Appellant, v. Sam E. RUDD, Elenore Rudd, Leonard A. Levand and Celia Levand, Appellees.

No. 40854.

Supreme Court of Kansas.

April 12, 1958.

Syllabus by the Court

The record in a partition action examined in the light of applicable statutes, rules and decisions relating to appellate review of a judgment, wherein the trial court overruled exceptions to the report of the commissioners and sustained the report, and held to disclose no reversible error.

W. A. Kahrs, Wichita, argued the cause, and Robert H. Nelson and Patrick F. Kelly, Wichita, were with him on the briefs, for appellant.

H. E. Jones and Richard Jones, Wichita, argued the cause, and A. W. Hershberger, Wm. P. Thompson, Jerome E. Jones, and William E. Palmer, Wichita, were with them on the briefs, for appellees.

PARKER, Chief Justice.

This was an action for the partition of real property owned by tenants in common. The appeal is from an order overruling plaintiff's exceptions to the report of the commissioners; the approval of that report, wherein the real estate was partitioned among the respective owners in kind; and that part of the judgment partitioning and assigning such real estate to the parties in conformance with such report.

Plaintiff, B & S Enterprises, Inc., commenced this action by filing a petition in the district court of Sedgwick County containing two causes of action.

The first cause of action alleged that it was the owner of an undivided six-eighths interest and that each of the defendants (Sam E. Rudd, Elenore Rudd, Leonard A. Levand and Celia Levand) owned an undivided one-sixteenth interest in and to the South Half (S/2) of the Southwest Quarter (SW/4) of the Southwest Quarter (SW/4) of Section 4, Township 27, Range 1 East of the 6th P.M., Sedgwick County, Kansas, except the right-of-way of the Atchison, Topeka and Santa Fe Railway and North Wichita Drainage Canal and easements of record and the East thirty (30) feet of said South Half (S/2) of the Southwest Quarter (SW/4) of the Southwest Quarter (SW/4) of Section 4, Township 27, Range 1 East of the 6th P.M., Sedgwick County, Kansas; that such property was susceptible of being partitioned; and that it desired to have and own its share therein severalty.

The second cause of action alleged that the property sought to be partitioned and the improvements thereon were leased to various persons, companies and corporations and that pending the final determination of the case a receiver should be appointed for the purpose of collecting rents, paying taxes and maintaining such property, all in accord with the orders of the court.

In the prayer of the petition plaintiff asked that partition of the real estate be made according to the respective interests of the parties or if partition could not be made without manifest injury that it be appraised and sold and for the appointment of a receiver.

In passing it is to be noted proceedings had in the court below with respect to the second cause of action are not involved on this appeal and require no further mention.

So far as pertinent to the issues here involved it should be stated defendants' answer disclosed they were each the owners of a one-sixteenth interest in the involved real estate, alleged such property was susceptible of partition in kind among the parties, and that they would be placed at a financial disadvantage if it were sold, and prayed for the appointment of commissioners with directions to allot them particular portions of the property.

The reply deals with allegations of the answer, heretofore noted as of no consequence to the issues, and prays that the property be partitioned in accord with the laws of the State of Kansas.

On May 31, 1956, the case came on for trial upon the issues joined by the pleadings before the Hon. Howard C. Kline, judge of the district court of Sedgwick County, division No. 2, where, after introduction of evidence and arguments of counsel, the court found that the interests of the respective parties to be as set forth in such pleadings; that the real estate therein was subject to partition and that commissioners should be appointed to make partition as provided by law. In the same order and judgment the court appointed Richard R. Santee, L. W. Roberts and Nestor Weigand, as commissioners, directing them to make partition of the real estate and personal property among the parties according to their respective interests, if such division could be made without manifest injury, but if in their opinion and judgment partition could not be so made then to make a valuation and appraisement of the property and file their report with the court. Such order and decree also directed the commissioners to take and subscribe to an oath as provided by law before entering upon their duties and provided that after doing so a certified copy of such order should be delivered to each commissioner, which order would be his authority to proceed to make partition of the property as therein directed.

Shortly after making the foregoing order and decree defendants filed a motion, stating that they had a family community interest, in the property and asking that the commissioners be directed to consider such interests as a unit in deliberations concerning partition of the property as theretofore directed by the court. The court's ruling on this motion reads:

'That said motion should be sustained in that the Commissioners, in addition to the instructions heretofore given them by the Court, are hereby instructed to report back to the Court all methods and plans for the partition of the property which they deem feasible and which may include a plan for the grouping of the respective 4/16ths interests of the defendants in a continguous area so as to constitute a whole.'

Some three months after their appointment the commissioners filed their final report with the court wherein they found that, in their considered and unanimous judgment, partition in kind of the real and personal property in the estate could be made among the parties according to their respective interests without manifest injury to the property or the parties in the manner therein described. This was a lengthy document which, it may be added, when carefully read and examined disclosed the expenditure of a great amount of time, work and effort on the part of the commissioners, as well as the consulting engineer and the technical adviser referred to in the first paragraph of the findings of fact to be presently mentioned. Such report contained the formal report by the commissioners as well as findings of fact made by them. In addition it included a detailed description of each of the buildings located on the property, photographs thereof, and a detailed description of equipment located in and a part thereof. It also set forth much additional information, all with respect to such property, including lease expiration dates, monthly rentals, surveys and financial statements.

From what has been heretofore stated it is obvious that limits of time and space preclude quotation or detailed reference to everything covered by the complete report of the commissioners. However, in view of their importance, we have decided to attach copies of the formal report and findings of fact to this opinion as appendixes, identified as 'A' and 'B' respectively.

Shortly after the commissioners' report was returned the plaintiff filed exceptions thereto which read:

'Comes Now B & S Enterprises, Inc., plaintiff herein and excepts and objects to the report of the commissioners filed in the above entitled matter for the reason that said report and partition of said real estate insofar as the plaintiff is concerned is inequitable and unjust. That said commissioners have failed to properly regard and consider valuations, income, leases, frontage, future development of the area, taxes and various other factors involving an equitable partition. That the area partitioned to the defendants far exceeds a one-fourth (1/4) interest in the area sought to be partitioned as to size and valuation and constitutes an inequality in the division made insofar as plaintiff is concerned. That if such partition is approved by the court manifest injury will result to the plaintiff herein. Plaintiff alleges that said report should be rejected and set aside by the court and new commissioners appointed in accordance with General Statutes of Kansas, 1949, and supplements thereto, Section 60-2108.'

Following the filing of the foregoing exceptions the issues raised thereby were presented to and disposed of by the Hon. Henry E. Martz, judge of the district court of Sedgwick County, division No. 5, in a full and extended trial. Upon hearing all evidence, arguments of counsel and after taking the case under advisement such court ultimately notified attorneys for the parties that it had viewed the property, reviewed and considered the record and briefs of counsel and found that plaintiff had failed to show good cause why its exceptions and objections to the report of the commissioners should be sustained.

Thereupon, according to pertinent portions of the journal entry, approved by counsel for all parties, the court overruled plaintiff's motion for a new trial, approved the report of the commissioners and rendered judgment partitioning and setting aside to Sam E. Rudd, Elenore Rudd, Leonard A. Levand and Celia Levand, Parcels 'A' and 'B' of the real estate, describing such Parcels as they are described in the report of the commissioners (see Appendix 'A') and partitioning and setting aside to B & S Enterprises, Inc., Parcel 'C' of the real estate, describing that Parcel as it is described in such report (see Appendix 'A'). In addition the court found that such tracts of land were partitioned to the parties subject to utility easements and present utility lines wherever located and that the owners of each of such tracts were granted the...