Branner v. Nichols

• Decision Date: 06 January 1900
• Docket Number: 11,413
• Citation: 59 P. 633,61 Kan. 356
• Parties: JOHN S. BRANNER v. MILLIE NICHOLS
• Court: Kansas Supreme Court

59 P. 633

61 Kan. 356

JOHN S. BRANNER v. MILLIE NICHOLS

No. 11,413

Supreme Court of Kansas

January 6, 1900

Decided January, 1900. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Jackson district court; LOUIS A. MYERS, judge.

STATEMENT.

THIS was an action of ejectment tried in Jackson county, the venue having been changed from Shawnee county. The plaintiff below alleged in the petition that ever since October 7, 1875, she had been the owner in fee simple and entitled to the possession of an undivided one-fourth interest in lot 165, on Kansas avenue, in the city of Topeka. That since December 13 1881, the defendant, John S. Branner, had unlawfully and wrongfully kept her out of possession of the same. The second cause of action was for the recovery of the use, rents and profits of said interest.

The amended answer of defendant below, John S. Branner, contained three defenses, the first being a general denial; the second an allegation that defendant had been in the exclusive, continuous, and notorious possession of the premises for more than fifteen years prior to the commencement of the action under a claim of right, he being the legal and equitable owner thereof in fee simple, and that if plaintiff ever had any cause of action the same was barred by the statute of limitations; and the third, in substance, as follows:

On or about May 10, 1865, Oramel Griffin, who was at the time the owner of the property, executed and delivered to John S. Branner and Jacob Klein, as trustees, a deed of general warranty for the same. At the time of said conveyance John S. Branner and Jacob Klein were partners doing business as Branner & Klein, and defendant and Klein continued to own and hold said real estate as joint tenants until the death of Jacob Klein, on or about October 10, 1875. Jacob Klein left as his sole and only heirs plaintiff, Millie Nichols (then Millie Klein), and Josie Klein, now Josie Webb. At the time of the death of Jacob Klein there was a large amount of indebtedness outstanding against said partnership. Shortly after the death of Klein, defendant filed his bond, as provided by statute, as the surviving partner of the firm of Branner & Klein, and by reason thereof became the custodian and special trustee of all the property belonging to said firm.

Defendant, in the year 1881, as such surviving partner, under the order of the probate court of Shawnee county, sold the undivided one-half of said real estate for the sum of $ 3000, and by reason of defendant being the owner of the undivided one-half of the same and liable for an equal proportion of the indebtedness against the partnership, defendant accounted to the firm of Branner & Klein and charged himself as surviving partner on account of the sale of said lot with the sum of $ 6000, that amount representing the purchase-price of the whole of said lot 165. The property sold for a fair price. At the time of the sale there was due defendant by the firm of Branner & Klein, by reason of money advanced by him as surviving partner in the payment of partnership debts, the sum of $ 2000. The unpaid debts of the firm at the time of the death of Jacob Klein amounted to about $ 8000, which were due, and it became necessary to dispose of some property to meet said obligations, and lot 165 was the least productive and hence most available to sell at the time. Said lot was unimproved, except that a small wooden building of little or no value was situated thereon. Defendant sold one-half of the property as aforesaid to Otto Kuehne for the consideration of $ 3000, with the understanding that the defendant would take the property from him at that sum. He took a deed from Kuehne in good faith, and the conveyance to Kuehne having been approved by the probate court. In his final account filed in the probate court in 1892, defendant charged himself with $ 6000, the purchase-price of the real estate, and used said consideration in the payment of legal debts of the firm of Branner & Klein. By reason of said sale other real estate was prevented from being sacrificed for the payment of debts. The money was used for the payment of debts of the firm in the years 1881 and 1882.

On or about the 20th day of April, 1892, the defendant, as surviving partner as aforesaid, made a final settlement with the heirs of Jacob Klein and filed his final account in the probate court of Shawnee county, Kansas, in which he charged himself with $ 6000 in the joint account of Branner & Klein with this defendant as surviving partner. Plaintiff had full knowledge at the time of said settlement that $ 6000 was charged as the purchase-price of the real estate, and voluntarily received and accepted the same as such, which she has since retained. Ever since the year 1881 defendant has paid taxes on the whole of said real estate as the owner thereof, amounting to the sum of $ 200 per year for the entire period. In 1887 and 1888, believing he had a good and perfect title, he erected a large and substantial three-story-and-basement brick and stone building on said lot at a cost of about $ 12,000, and has paid insurance on said property amounting to the sum of about $ 500, and has expended $ 500 in repairs. Plaintiff had actual notice of said improvements and made no objection to their being made. Plaintiff, by reason of her long acquiescence in said sale and permitting said defendant to make lasting improvements, has forfeited any right she might have had from setting the sale aside, and is estopped from claiming any interest in the property. The purchase-price of the real estate (being $ 6000) was included in the final settlement with plaintiff, and defendant was indebted to her on account of the administration of said partnership estate in the sum of $ 3350.44, which amount plaintiff received from defendant long after said final settlement, and long after she had full knowledge that said amount of indebtedness had accrued and was created by reason of said sum of $ 6000, as the purchase-price of the real estate, being included in the final settlement.

At the time of the final settlement plaintiff, in person and by her attorneys, was represented, and defendant's report was fully investigated and considered by the probate court and by plaintiff and her counsel, and no objection was made thereto. The same was adjudicated and defendant ordered to pay the plaintiff the sum of $ 3350.44, which has been done, and no offer has been made by her to refund the same. At that time, and long prior thereto, plaintiff had full knowledge of the manner in which said property was sold, and that $ 6000 was charged against this defendant in his final account as the purchase-price of the real estate. The defendant's final report was approved by the probate court on or about the -- day of April, 1892, and he was, by order of said court, fully released and discharged from his trust. Defendant has been in the actual and continuous possession of the real estate for more than five years prior to the commencement of this action. This suit was not commenced for more than five years after the recording of the deed executed by the surviving partner and administrator of said partnership estate.

The plaintiff replied to this amended answer, first, admitting that at the time of the commencement of the suit said defendant was in actual and exclusive possession, adverse to plaintiff, of lot 165; that title to the property was derived as stated in the answer, the partnership of Branner & Klein, and the heirship of Josie Klein and Millie Klein, and denying all other allegations not admitted. For a second defense, she alleged that John S. Branner never had any power or authority to make the deed to Otto Kuehne alleged in the answer; and for a third defense, that defendant never executed any good and sufficient deed to Otto Kuehne; and fourth, that the instrument alleged in the amended answer to have been executed to Otto Kuehne by John S. Branner, as surviving partner and administrator of said partnership estate, was fraudulently made by John S. Branner for the purpose of converting the property therein described to the use of the defendant; that said Kuehne received the deed on behalf of the defendant as his agent, and immediately thereafter, in pursuance of defendant's direction, made a deed of the property to defendant. The fifth defense was, in substance, as follows:

The accounts and settlements of defendant in the probate court and the judgments and orders of the probate court, were fraudulently made and procured by the defendant under the following circumstances: In all his accounts and settlements in the probate court defendant has treated the estate of Jacob Klein and the partnership as separate estates, and in all orders and proceedings with reference thereto, the probate court has also treated them as such. On December 29, 1880, defendant rendered to the probate court his third and final account, which was then allowed, and an order discharging the defendant as administrator then entered on the records. Prior to said date, defendant filed an inventory and one annual account. Branner continued to act as administrator of the partnership estate, and to hold and manage all the assets thereof, until February 22, 1892, when he presented his final account as administrator of said partnership estate, in which were included various items, matters and transactions of his management as the guardian of the estate of plaintiff and her sister, whereby said account purported to be a final account of his administration of the estates of said plaintiff and her sister. In the final account defendant wilfully and falsely represented that, as administrator of said partnership estate, he had sold the undivided...