Clark v. Morris

• Decision Date: 08 February 1913
• Docket Number: 17,946
• Citation: 129 P. 1195,88 Kan. 752
• Parties: CHARLES W. CLARK, Appellee, v. WALTER MORRIS, Appellant, and PHILIP SCHOTT, Appellee
• Court: Kansas Supreme Court

129 P. 1195

88 Kan. 752

CHARLES W. CLARK, Appellee, v. WALTER MORRIS, Appellant, and PHILIP SCHOTT, Appellee

No. 17,946

Supreme Court of Kansas

February 8, 1913

Decided January, 1913.

Appeal from Sedgwick district court, division No. 1.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ABSOLUTE DEED--A Mortgage--Sale to Bona Fide Purchaser--Measure of Damages. The owner of land executed a deed absolute in form, but intended it as a mortgage to secure the payment of a loan from the grantee and the grantee, in violation of the agreement, conveyed the land to a bona fide purchaser and thereby deprived himself of the power to reconvey it to the grantor upon the payment of the debt. The grantor had no notice of the sale or of the rights acquired by the bona fide purchaser in the land until some time after the sale was made, and later the grantor tendered full payment of the debt secured by the deed and requested a reconveyance of the land, but both tender and request were refused. In an action brought by the grantor to redeem the land, or for the damages he had sustained in case redemption could not be had, it is held that the measure of damages for which the grantee is liable was the value of the land at the time that the tender of payment and demand for reconveyance of the land were refused, less the amount of the debt secured by the deed, and not its value at the time that the sale was wrongfully made by the grantee.

2. EVIDENCE--Excluded--When Ruling on Same is Reviewable. A ruling excluding evidence is not open to review unless such evidence is produced on the motion for a new trial by affidavit, deposition or oral testimony.

H. C. Sluss, of Wichita, for the appellant.

Brubacher & Conly, of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to redeem certain city lots which had been mortgaged by Charles W. Clark to secure the payment of $ 150 borrowed from Walter Morris on October 17, 1906. The instrument given as security was in form an absolute deed, but was intended as a mortgage. After this transaction Clark purchased the property at a subsequent tax sale, and the certificate then obtained was assigned to Morris as additional security. The borrowed money was to be paid in small installments at fixed times, but Clark failed to make the payments at the times stipulated. On April 9, 1909, Morris sold the lots to Philip Schott, who had no notice of the rights of Clark or that he was in fact the owner of the lots, and by this sale Morris disabled himself to reconvey the lots to Clark upon the payment of the debt. The writings evidencing the sale to Schott were not recorded, and Clark had no notice that Schott had purchased the lots until the writings were produced at the trial of this action. Before the sale to Schott, Morris, with four men, went to the lots one morning before daylight and put up a post and single wire fence around them. Clark discovered the action of Morris before the fence was finished, and in an interview Morris informed Clark that he had concluded to take possession of the lots. Morris testified that Clark then consented that he should take possession of the lots and that they should be regarded as his property. On the other hand, Clark's testimony is that he told Morris that because of sickness in his family he had been unable to make the payments as agreed upon, and that he did not know just what his legal rights were, but whatever they were he was going to stand on them. He denied positively that he surrendered possession of the property or disclaimed ownership in them, and the fact that he tore down the fence on the same morning and continued to use the property as he had previously done tends to support his testimony. On June 22, 1910, Clark tendered to Morris the full payment of the borrowed money with the accrued interest, and demanded that he convey the property back to Clark in accordance with the agreement, but both tender and demand were refused. On the trial Morris claimed to be the owner of the lots and that Clark had voluntarily surrendered possession of them, and at the same time had disclaimed any interest in them. The trial court found in favor of Clark, holding that the deed was intended to be and was in fact a mortgage, and that as against Morris he had a right to redeem; but it was also found that Schott, who had been made a party to the action, was a bona fide purchaser of the lots, and therefore redemption could not be enforced as against him.

The first and principal ground assigned as error is that a wrong measure of damages was applied in fixing the liability of Morris. The court decided that he was liable for the value of the lots as they were when the tender of payment was made and the reconveyance of the lots was refused, while on the other side it was contended that a cause of action arose when Morris sold the property and placed it beyond his power to reconvey, and that its value at the time of sale was the measure of recovery. In a proceeding of this kind equitable considerations govern, and the measure of damages must depend largely upon the particular circumstances of each case. It appears that the contract of sale from Morris to Schott was not recorded and. that Clark had no...