Deetjen v. Richter

• Decision Date: 10 April 1885
• Citation: 6 P. 595,33 Kan. 410
• Parties: NIC DEETJEN v. RUDOLPH RICHTER
• Court: Kansas Supreme Court

6 P. 595

33 Kan. 410

NIC DEETJEN v. RUDOLPH RICHTER

Supreme Court of Kansas

April 10, 1885

Error from Clay District Court.

ACTION by Richter against Deetjen in the nature of ejectment commenced December 5, 1882, to recover possession of lots 2 6 and 9 of section 5, in township 7 south, of range 2, in Clay county. Trial at the May Term, 1883, before the court, a jury being waived. The court found the following conclusions of fact:

"1. That a patent was issued for lots 2, 6 and 9 in section 5 township 7, in range 2, east of the sixth principal meridian in Clay county, Kansas, to the plaintiff, Rudolph Richter, on the 15th day of August, 1876.

"2. That on the 3d day of May, 1879, the plaintiff made a warranty deed to said premises to his daughter, Lydia Richter, which was a mere voluntary conveyance, for which there was no consideration. This deed was recorded on the same day, viz.: May 3, 1879.

"3. That on the first day of April, 1881, a mortgage on said premises for the sum of $ 45, and due April 1, 1886, was executed by Lydia Richter to Underwood, Clark & Co., and on the same date another mortgage, for the sum. of $ 300, was executed by said Lydia Richter to the Scottish American Mortgage Co., due April 1, 1886, both of which mortgages were recorded on the 1st day of April, 1881.

"4. That on the 18th day of June, 1881, said Lydia Richter reconveyed said premises to plaintiff by warranty deed, which deed was recorded October 10, 1882, the plaintiff assuming the payment of said mortgages, which was the only consideration for said deed and reconveyance, except that said plaintiff told said Lydia Richter that unless she reconveyed, he would sell his personal property and leave her. Plaintiff had no way to provide for said Lydia except said land.

"5. That on the 31st day of May, 1882, such proceedings were had as that the said Lydia Richter was found to be insane, and ordered by the probate judge of Clay county, Kansas, to be committed to the insane asylum of the state of Kansas, and she was accordingly sent to said asylum, and has remained there ever since said time.

"6. That afterward such proceedings were had as that George W Martin was appointed guardian of said Lydia Richter, and by appropriate proceedings thereafter the premises in question were sold to the defendant Deetjen, to pay the costs of the proceedings wherein said Lydia Richter had been adjudged insane; and the said probate judge having approved the proceedings, a deed was made by said guardian to said defendant for said premises, on the 3d day of August, 1882, and filed for record on the 3d day of August, 1882, the terms of said sale being the payment of $ 300 cash, and the assumption of the payment of the said mortgages, which said $ 300 cash was paid by the defendant, and said mortgages also were paid off by him on the 4th day of October, 1882; the said mortgages at the time amounting to the sum of $ 350, and $ interest and principal, had previously been paid upon said mortgages, making in all the sum of $ paid by him thereon; also, one-half the taxes for the year 188- were paid by defendant, amounting to $ .

"7. That until the time said Lydia Richter was found to be insane, by said proceedings in said probate court, she and her father, the plaintiff, resided upon said premises, plaintiff having no other family. But the cultivated ground upon said premises had been leased for that season by plaintiff, to one Stober; the lease to Stober was made in the spring of that year, to wit, in the year 1882, and the fact that said Stober was farming said land as the tenant of Rudolph Richter was known to said defendant at the time, but he did not have actual notice of the deed from Lydia Richter to plaintiff, nor did he inquire into the title, although he knew, as stated, that Stober was farming said premises as the tenant of said Rudolph Richter, and that said Rudolph Richter and Lydia had resided upon said land continuously from the date of said patent from the United States until said Lydia was found to be insane.

"8. That at the time defendant showed plaintiff his deed, after he had obtained the same from the said guardian of Lydia Richter, plaintiff gave defendant one of the keys to the house upon said premises, and said Stober gave him the other of said keys. Plaintiff at the same time also gave defendant a notice which he had received of an installment of interest being due upon said mortgage, and told him to pay it. At the time of doing this, plaintiff was not in good health, and was considerably excited and quite nervous.

"9. That the amount paid on said mortgages has never been tendered back to defendant by plaintiff, or anyone in his behalf, nor has plaintiff ever demanded possession of said premises from the defendant."

The court thereon made the following conclusions of law:

"1. That the defendant, if he desires to do so, should be allowed to file an amended answer herein, to correspond with the facts as found by the court, so as to ask to be subrogated to all the rights of the mortgagees in said mortgages paid off and discharged by said defendant, and setting aside the release of said mortgages.

"2. That if such amended answer is filed, that then the defendant will, as matter of law, be entitled to relief of the character mentioned in the preceding conclusion of law.

"3. That the plaintiff is entitled to a judgment for the possession of the premises in question, notwithstanding his deed was unrecorded at the time of the purchase at guardian's sale by defendant, for the reason that he knew said Stober was tenant of said premises under said plaintiff, and was therefore bound to inquire as to plaintiff's title, and was bound to take notice of plaintiff's title by reason of plaintiff's living upon said land and the land being farmed by said tenant.

"4. That plaintiff is entitled to a judgment against said defendant for costs of suit."

To all and each of said conclusions of fact and of law, the defendant at the time duly excepted. Afterward the court rendered judgment that the plaintiff recover of the defendant the land described in the petition, together with his costs in the action. The court, however, under the amended answer filed by the defendant, adjudged that the amount of the mortgages given by Lydia Richter upon the premises, together...