Durand v. Higgins

Citation67 Kan. 110,72 P. 567
Decision Date09 May 1903
Docket Number13,135
PartiesIDA M. DURAND et al. v. ANNA M. HIGGINS et al
CourtUnited States State Supreme Court of Kansas

Decided January, 1903. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

THIS was an action by Anna M. Higgins to quiet her title to certain real estate in Shawnee county and to compel the cancelation of a certain deed held by the plaintiffs in error, and a reconveyance of the title evidenced thereby. The issues were tried to the court. Its findings of fact and conclusions of law were as follows:

"FINDINGS OF FACT.

"1. On June 11, 1888, and for many years prior thereto, the defendant Hiram Higgins was the owner of the following-described real estate situated in Shawnee county Kansas, to wit: Lots No. 14, 16 and 18 on Polk street and lot No. 234 on Kansas avenue in the city of Topeka, the southeast quarter and the northeast quarter of section 11, township 12 range 15.

"2. On June 11, 1888, Hiram Higgins executed and delivered a deed of conveyance of all of the property described in finding No. 1 except the east sixty acres of the northeast quarter of said section 11, township 12, range 15, to Kelley S. E. Higgins, Hiram F. Higgins, William I. Higgins, and Ida M. Durand, who were the children of said Hiram Higgins, but Mary Higgins, who was then the wife of said Hiram Higgins, did not join in said deed. Said deed was acknowledged before C. E. Moore, a notary public, on June 11, 1888, and was filed for record in the office of the register of deeds of Shawnee county on June 12, 1888. A copy of said deed is attached to the plaintiff's amended petition, marked 'Exhibit A,' is hereby referred to and made a part of this finding of fact.

"At the same time and as part of the same transaction, and in consideration of said deed, the grantees therein named, Hiram F. Higgins, Kelley S. E. Higgins, William I. Higgins, and Ida M. Durand, executed and delivered to Hiram Higgins a certain agreement, which was on April 2, 1892, filed in the office of the register of deeds of Shawnee county, but was not acknowledged. A copy of said contract is attached to the plaintiff's amended petition, marked 'Exhibit B,' is hereby referred to and made a part of this finding of fact. While this deed and agreement bear different dates, yet as a matter of fact they were both delivered on the same day, June 11, 1888.

"3. On February 5, 1889, Hiram F. Higgins, Kelley S. E. Higgins, William I. Higgins, and Ida M. Durand, the grantees mentioned in the deed referred to in finding No. 2, executed a power of attorney to Hiram Higgins, the grantor in said deed, which power of attorney was duly filed for record in the office of the register of deeds of Shawnee county. A copy of said power of attorney is attached to plaintiff's petition, marked 'Exhibit C,' and is hereby referred to and made a part of this finding of fact.

"4. The deed referred to in finding No. 2 was executed by Hiram Higgins partly as a gift to his children, in consideration of love and affection for them, and partly for the purpose of defrauding one of his creditors, who then had a suit pending against him in the district court of Shawnee county, which suit afterwards ripened into judgment. After numerous efforts were made by said creditor to collect said judgment, Hiram Higgins paid the same in February, 1892.

"5. William I. Higgins died intestate, without issue and unmarried, on June 6, 1890, and Hiram F. Higgins died intestate, without issue and unmarried, in November, 1900.

"6. In the year 1878, and for a long time prior thereto, Hiram Higgins was the owner and in possession of all that part of the southeast quarter of section 11, township 12, range 15, lying south of the Shunganunga creek, in Shawnee county.

"Mary Higgins was the wife of Hiram Higgins. William I. Higgins, one of the sons of Hiram and Mary Higgins, was of weak and feeble mind, disagreeable, and required considerable care. An arrangement was made by which, in the fall of 1878, a house of about five rooms was built on the tract last above described, with the understanding that William I. Higgins and Hiram F. Higgins should occupy said house and have the use of said tract of land. Mary Higgins, the mother of said William I. Higgins and Hiram F. Higgins, was anxious that this arrangement should be carried out, and for that purpose used about $ 900 of money that she had received from her father's estate in the erection of said house. After said house was completed, or nearly so, William I. Higgins and Hiram F. Higgins moved into it, and each of them continued to live there until his death.

"7. Hiram Higgins and his wife, Mary Higgins, had possession of all the real estate described in finding No. 1 continuously up to the time of the death of said Mary Higgins, which occurred January 2, 1894, either in person, by tenant, or as described in finding No. 6.

"8. On May 11, 1892, the defendant Kelley S. E. Higgins commenced suit in the circuit court of Shawnee county, Kansas, against Hiram Higgins, Hiram F. Higgins, Ida M. Durand, claiming that he was the owner in fee simple of an undivided one-fourth interest in all of the land described in finding No. 2, and claiming that he was entitled to the immediate possession of said one-fourth interest, and prayed for partition and for the recovery of the possession of his interest in said land. The defendants in said suit, Hiram Higgins, Hiram F. Higgins, and Ida M. Durand, were personally served with summons, but the defendants Hiram F. Higgins and Ida M. Durand filed no answer or pleaded.

"On November 14, 1892, Hiram Higgins filed an answer in said suit, consisting, first, of a general denial, and alleged the execution of the deed referred to in finding No. 2; that said conveyance was made without consideration and at the solicitation of his children; that while said deed purported to convey the title to said property in fee, yet it was understood and agreed that the conveyance was merely a conveyance in trust; that contemporaneously with the execution of said deed the contract referred to in finding 2 was made; that in pursuance to said contract, the makers thereof, on the 5th day of February, 1889, executed to Hiram Higgins the power of attorney referred to in finding No. 3; that defendant Hiram Higgins presented to the plaintiff Kelley S. E. Higgins and to the defendants Hiram F. Higgins and Ida M. Durand a quitclaim deed conveying all of the property described in finding No. 2 to Hiram Higgins; that Hiram F. Higgins and Ida M. Durand signed such deed, but that the plaintiff, Kelley S. E. Higgins, refused to execute the same; and said Hiram Higgins prayed that the plaintiff, Kelley S. E. Higgins, be required to execute and deliver to the defendant Hiram Higgins a deed to all of the property described in finding No. 2.

"On May 10, 1893, the plaintiff, Kelley S. E. Higgins, filed a reply to the answer and cross-petition of the defendant Hiram Higgins, denying generally the allegations and averments therein contained, which were inconsistent with his right to recover, and denying that said deed was executed for love and affection and that it was a conveyance in trust, and denied that the contract heretofore mentioned was contemporaneous with the making of said deed, and that prior to the commencement of said suit the power of attorney heretofore mentioned was revoked as to the plaintiff. Said reply was duly verified.

"Afterwards, and on December 20, 1893, a jury being waived, said case was tried before the court, in said circuit court of Shawnee county, and the court made special findings of fact in substance as follows:

"'That on June 11, 1888, and for years prior thereto, the defendant Hiram Higgins was the owner of and in possession of all the real estate then in controversy; that on June 11, 1888, Hiram Higgins executed and delivered to Hiram F. Higgins, William I. Higgins, Kelley S. E. Higgins and Ida M. Durand a deed for all of the real estate then in controversy; that at the same time, and as part of the same transaction, Hiram F. Higgins Kelley S. E. Higgins, William I. Higgins and Ida M. Durand entered into a written contract referred to in finding No. 2 above; that on February 5, 1889, Hiram F. Higgins, Kelley S. E. Higgins, William I. Higgins and Ida M. Durand executed a power of attorney to Hiram Higgins, as mentioned in finding No. 3 above; that on November 15, 1892, Kelley S. E. Higgins executed a revocation of said power of attorney; that since the execution of said deed, power of attorney, and contract, Hiram Higgins was and has been in the possession of all of the property then in controversy except the southeast quarter of section 11, township 12, range 15, in Shawnee county; that Hiram Higgins is the father of Kelley S. E. Higgins, Hiram F. Higgins, Ida M. Durand, and William I. Higgins, deceased; that Mary Higgins, the wife of Hiram Higgins, is now living and residing with her husband on the east sixty acres of the northeast quarter of section 11 township 12, range 15; that since and long prior to the execution of said deed, and during all the time since the execution thereof, Hiram Higgins is and was in the possession of said quarter-section, living upon the same with his wife and such of the children as are unmarried, and occupying the same as a homestead; that there was no consideration whatever passing from Kelley S. E. Higgins, Hiram F. Higgins, William I. Higgins and Ida M. Durand for said conveyance of June 15, 1887, but the same was made in consideration of love and affection from said Hiram Higgins to his said children; that Kelley S. E. Higgins signed the said written contract above described, and dated on the 15th day of June, 1887, and that the signature...

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