Brown v. Parmalee

• Decision Date: 08 March 1930
• Docket Number: 29,189
• Parties: SOPHRONIA A. BROWN, Appellant, v. G. F. PARMALEE et al., Defendants; SAMUEL J. BROWN, Appellee
• Court: Kansas Supreme Court

285 P. 563

130 Kan. 165

SOPHRONIA A. BROWN, Appellant, v. G. F. PARMALEE et al., Defendants;

SAMUEL J. BROWN, Appellee

No. 29,189

Supreme Court of Kansas

March 8, 1930

Decided January, 1930.

Appeal from Butler district court, division No. 2; GEORGE J. BENSON judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEEDS--Delivery--Estoppel to Deny and Ratification of Agent's Acts. Where it appears that a grantor in a deed intrusts the deed to his agent to be delivered upon payment of $ 15,000, and the agent thereafter takes the deed to the grantee and leaves it with the grantee in escrow, upon condition that the deed be delivered upon payment of $ 15,000 to the credit of the account of the agent; that later the agent accepts payment of $ 7,500 and directs the escrow holder to record the deed; that grantor received the $ 7,500 so paid to the agent, and retained it for a period of about four years, or until his death; that the party who paid the $ 7,500 obtained a deed from grantee for one-half of the interest conveyed to the grantee, which deed he placed on record about three years before this action was brought, it is held: (a) That grantor's heirs are estopped from asserting that the deed was invalid because there was no authorized delivery. (b) That grantor and his heirs by retaining the benefits of the transaction after having knowledge of the delivery of said deed ratified the agent's act in so making delivery.

2. SAME--Power of Alienation. The power of disposition or alienation inheres in every grant unless the conveyance contains a clause in restraint of alienation.

3. EVIDENCE--Parol Evidence to Vary Writing--Warranty Deed as Royalty Conveyance. Parol testimony is not competent to show that a general warranty deed executed to a grantee as trustee was intended to be a royalty conveyance of only a one-half interest in the oil and gas rights in the lands described in the deed. Such a deed cannot be so varied and changed by parol.

4. JUDGMENTS--Res Judicata--Identity of Subject Matter. Defendant brought action for damages for fraud against the deceased husband of plaintiff, claiming that the deceased and other defendants conspired to defraud him by inducing him through misrepresentations to purchase an interest in lands. This action resulted in judgment for defendants. Held, such an action was not res judicata in a subsequent action between plaintiff, the widow of the deceased husband, and defendant, who was plaintiff in the former action, in which latter action the issue was whether or not defendant acquired title to the interest referred to in the action for damages.

N. A. Yeager, R. A. Cox, both of Augusta, L. P. Brooks, L. A. Hasty and James B. Nash, all of Wichita, for the appellant.

W. R. Glass, of Wichita, and J. B. McKay, of El Dorado, for the appellee.

OPINION

JOCHEMS, J.:

This was an action to quiet title. Plaintiff filed a petition which set forth the usual general allegations and in reply thereto the defendant, Samuel J. Brown, filed an answer and cross petition pleading, in substance, a general denial and alleging that he was the owner of a one-fourth interest in the real estate described in plaintiff's petition and a one-fourth interest in the sum of $ 5,000 condemnation money which had been paid to the defendant county treasurer by the Atchison, Topeka & Santa Fe Railway Company in certain condemnation proceedings in which a portion of the lands was taken by the railroad. He further alleged that since 1921 (that being the year in which he obtained title to an undivided one-fourth interest in the lands) the plaintiff had collected all rents and profits therefrom and that defendant was entitled to an accounting of his one-fourth share therein. He also asked judgment for one-fourth of an amount of money received by the plaintiff as the proceeds of an insurance policy which she had collected as a result of a fire which burned one of the buildings on the lands since he had acquired a one-fourth interest therein. He further prayed the court that he be adjudged the owner of an undivided one-fourth interest in said lands and that a decree of partition be entered.

The defendant Guarantee Title and Trust Company answered that it was the owner of an undivided one-fourth interest in said property and asked that its rights be protected and that it be given such relief as the court might deem proper.

The plaintiff filed reply to the answer and cross petition of the defendant Samuel J. Brown. A large portion of this reply was ordered stricken out by the court on a motion to strike which was filed by the defendant Samuel J. Brown. No appeal was taken from this order on the motion to strike within six months, but in the reply the general denial and allegations of the source of plaintiff's title, the allegation as to adverse possession and the death of Jonathan W. Brown were permitted to stand. Upon the foregoing issues the case proceeded to trial. The court made findings of fact and conclusions of law which are quite voluminous. We shall endeavor to set forth the substance of these findings.

For many years prior to 1918 Jonathan W. Brown was the owner of the lands in controversy. In the early part of June, 1918, T. C. Johnson and R. J. Pryor, who were then engaged in the oil business at Wichita, asked Park E. Salter, who was the son-in-law of Jonathan W. Brown, to ascertain whether they could purchase an interest in the oil and gas rights in the Brown lands so that they could form and promote a syndicate with the Guarantee Title and Trust Company of Wichita acting as trustee. Jonathan W. Brown and his wife, Sophronia A. Brown, plaintiff in this case, then resided on or in the neighborhood of this land. No well for oil or gas was ever drilled on the Brown land, but at the time Johnson and Pryor became interested therein an offset well was being drilled on adjoining land. The son-in-law Salter talked over the matter with the treasurer of the trust company and was informed that the company could not act as trustee unless the real estate was deeded over to the company. Thereafter Salter, at the request of Johnson and Pryor, discussed the matter with Jonathan W. Brown and told him the trust company would demand deed, and Brown orally agreed to accept $ 15,000 and execute a warranty deed to an undivided one-half interest in the real estate. This was agreeable to Johnson and Pryor. A general warranty deed to an undivided one-half interest in the lands in controversy was executed by Brown and wife to the Guarantee Title and Trust Company, as trustee, dated June 7, 1918. This deed was delivered to Salter and he took it to Wichita, where it was left in escrow with the trust company on or about June 10, 1918. The deed was placed in an envelope and on the back thereof was indorsed:

"The inclosed deed to be delivered upon payment to you for my account the sum of $ 20,000 on or before ten days after abstract of title is delivered to you, and to be returned to me if payment is not made by that date; revenue stamps to be deducted from purchase. (Signed) Park E. Salter."

While the agreement provided for payment of $ 20,000, the actual consideration which was to go to Jonathan W. Brown was $ 15,000. This escrow agreement was made to call for $ 20,000 at the request of Johnson and Pryor so that it would appear to the public that the property was being offered for sale at its cost price, but the $ 5,000 over and above the purchase price, agreed to be paid to Brown, was in fact to belong to Johnson and Pryor. In April, 1918, Brown and wife had placed an oil-and-gas lease on the lands in controversy to one E. E. Johnson. This lease was for a term of six months from July 28, 1918, and the deed to the Guarantee Title and Trust Company was made subject to this oil-and-gas lease.

On or about June 10, 1918, the trust company and Johnson and Pryor executed a trust agreement in writing which was offered in evidence. This agreement was very elaborate in form and recited that Johnson and Pryor had caused an undivided one-half interest in the lands in controversy to be deeded to the Guarantee Title and Trust Company and then set forth a declaration that the trust company would hold the interest in said real estate so deeded to it in trust; would collect all rents and royalties and distribute the same to each beneficiary. It set forth that the unit of ownership should be 20,000 and also set forth a form of certificate of ownership which should be issued to each beneficiary from time to time as the interests were sold; provided for the keeping of a register of the units of interest; provided for the time and manner of distribution of income from the rents and royalties; for payment of state and federal taxes; for semiannual reports to the holders of certificates; for compensation of the trustee; for a committee of owners of certificates to consult with the trustee and that the trustee might resign and turn the trust over and convey the property to such person as a majority in interest of the certificate holders should designate. It provided that the trustee should convey said royalty interest or any part thereof by proper instrument of conveyance upon receiving written authority of a majority in interest of the beneficiaries to make such transfer or conveyance; that the proceeds from a sale should be distributed in the same manner as set forth for other income and profits accruing to the trustee from the trust property.

After the execution of this trust agreement Johnson sent a copy of the same to Samuel J. Brown, defendant herein, and offered to sell Brown a half interest in the syndicate for $ 7,500. On July 2, 1918, Johnson and Pryor by letter again offered to sell Brown 10,000 units, which they stated was one-half...