Dusenbery v. Bidwell

• Decision Date: 09 March 1912
• Docket Number: 17,472
• Citation: 121 P. 1098,86 Kan. 666
• Parties: GEORGE W. DUSENBERY, Appellee, v. MATEY L. BIDWELL et al., Appellants
• Court: Kansas Supreme Court

121 P. 1098

86 Kan. 666

GEORGE W. DUSENBERY, Appellee, v. MATEY L. BIDWELL et al., Appellants

No. 17,472

Supreme Court of Kansas

March 9, 1912

Decided January, 1912.

Appeal from Kiowa district court.

STATEMENT.

ACTION for redemption from an alleged mortgage, which was, in form an absolute deed, in which appellee asked to have the amount of the mortgage debt determined and that he be allowed to redeem the land upon payment of the amount due, and that thereupon he be decreed to have the legal and equitable title to the land. Upon testimony offered the court made the following findings of fact and conclusions of law:

"FINDINGS OF FACT.

"That upon and prior to August 22nd, 1894, the plaintiff George W Dusenbery was the owner in fee of the lands involved herein to-wit: The Northwest Quarter of Section Thirty Five, Township Twenty Eight, Range Twenty, in Kiowa County, Kansas.

"That upon said date, August 22nd, 1894, plaintiff and his wife executed and delivered to George H. Bidwell a warranty deed conveying said lands to said grantee; and that the consideration expressed in said deed was $ 1200.00. At the date of this instrument George H. Bidwell held a promissory note signed by plaintiff which is in words and figures as follows:

"$ 500.00 MULLINVILLE, KANSAS,

June 23, 1893.

Sixty days after date we promise to pay to the order of Geo. H. Bidwell Five Hundred and 00-100 Dollars, at Mullinville. Value received, with interest at ten per cent per annum after date until paid. G. W. DUSENBERY.

LAVINA DUSENBERY.

(Endorsements)

"Aug. 12,

By Cash

52.46

Aug. 31-93

By Cash

21.84"

"This note has ever since said date been in the possession of said Bidwell, his administrator or heirs.

"That upon August 31, 1894, plaintiff executed and delivered to said George H. Bidwell his promissory note as follows:

"$ 231.00 MULLINVILLE, Aug. 31, 1894.

Ninety days after date I promise to pay to the order of George H. Bidwell, Two Hundred Thirty One Dollars at ten per cent interest from date. Value received. G. W. DUSENBERY.

"This note has remained in the possession of said Bidwell, his personal representatives or heirs at all times since said date.

"That said deed was executed and delivered to said Bidwell under an agreement with said Bidwell that he should hold the title to said land as security for the indebtedness then existing due from said Dusenbery to him, and under the further agreement that he should care for the land, arrange for renting the same, collect the rents therefrom and pay the taxes, and pay the United States Government $ 100.00 as a final payment upon the land, and further that Bidwell was to sell the land whenever a price could be secured that would be sufficient to pay Bidwell his lien and expenses, the balance if any, to go to Dusenbery. That Bidwell took charge of said property under such agreement and remained in charge thereof until his death and made no sale thereof at any time.

"That about September 1st, 1894, said Dusenbery and his family left the land and moved to Topeka, Kansas, and has at all times since been a non-resident of Kiowa County, and absent therefrom until May, 1909.

"That upon June 15, 1897, there was due from plaintiff to Bidwell on account of said original indebtedness, interest, taxes, amount paid the United States Government, expenses, and claim for improvements, the sum of $ 600.00.

"That upon June 1st 1897; a tax deed was issued by Kiowa County conveying these lands to L. M. Day in consideration of the delinquent taxes of 1892 and subsequent taxes; the total consideration for said deed being $ 119.33.

"That this deed was caused to be issued by said Bidwell without the knowledge of said Day, and all the consideration therefor was paid by said Bidwell. That said Bidwell had said tax deed issued for the purpose of obtaining a fee simple title himself to said lands and to bar plaintiff from any interest he might have therein.

"That said Bidwell died in 1901, and upon December 6th, 1904 L. M. Day executed and delivered a quit claim deed conveying these lands to the heirs of said Bidwell. No consideration passed for this deed.

"That plaintiff did not receive knowledge of the interest of said Bidwell in said tax deed until May, 1909.

"That Geo. H. Bidwell and his heirs have been in possession of said land at all times since 1894.

"That no suit to foreclose or enforce any lien claimed by George H. Bidwell or his heirs or personal representatives has ever been brought.

"That the total net amount due at this time from Dusenbery to defendants by reason of the aforesaid indebtedness, interest, expenses of handling land, taxes, credits of all kinds including interest and claims for improvements, amounts to the sum of $ 1500.00 after deducting all claims for rents and profits.

"That the said land had little if any market or cash value from 1894 to 1897 inclusive. Its market or cash value from 1897 to 1901 was about $ 200.00. In 1904, $ 2000.00. In 1906, $ 3000.00. In 1909, $ 6000.00. And at the date of the trial about $ 8000.00.

"These facts must be found regardless of whether the testimony of Mrs. Dusenbery is considered or not.

"That prior to the bringing of this suit, defendants denied the title of plaintiff in and to the said land, and refused and now refuse to permit his redemption of the same by the payment of his indebtedness, and now claim to own the same in fee."

"CONCLUSIONS OF LAW.

"The warranty deed given in 1894 was in fact a mortgage.

"The attempt by George H. Bidwell to secure title through a tax deed in 1897 was a fraud upon the rights of Dusenbery and as neither actual or constructive notice of this fraud came to Dusenbery until 1909, the two years of limitation did not run.

"No statute of limitation has run against redemption.

"The duty resting upon Bidwell to pay the taxes against the land, he could acquire no title by taking out a tax deed in the name of another.

"The personal representatives and heirs of George H. Bidwell have no greater right than he had.

"Judgment should be for plaintiff permitting redemption and recovery of the land and cancellation of the deed."

In accordance with these findings judgment was entered decreeing a redemption upon the payment by appellee of $ 1500 and that his title in the land be quieted as against appellants. From this judgment an appeal was taken.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEED--Absolute in Form--Security--A Mortgage. Where a debtor executed to his creditor a deed, absolute in form, which both understood and intended as a security for the payment of the debt, it will be treated as a mortgage with the consequent right in the grantor to redeem.

2. MORTGAGEE IN POSSESSION--Tax Sale--Certificate--Tax Deed. Where the mortgagee held the legal title and possession of the mortgaged land under an agreement that he would pay the taxes and charges accrued and accruing against the land, and that when a purchaser was found and a transfer made he would take from the proceeds the amount of the debt due him and the mortgagor should have the remainder of the proceeds, and, thereafter, the mortgagee failed to pay the taxes, and later purchased the land at a tax sale, his purchase, in effect, constituted a payment of the taxes, although he procured the certificate of sale and tax deed to be issued in the name of another.

3. LACHES--Redemption--Statute of Limitations--Fraud. Lapse of time is not necessarily laches and laches in asserting a right does not necessarily defeat it. Whether laches is sufficient to bar relief depends on the circumstances of the case, such as the presence of fraud, intervention of the rights of third parties, delay being induced by the action of the adverse party, disability, death of parties, ignorance of facts or of rights, and change of relations and conditions.

4. LACHES-- Same. Where the mortgagee purchased the land at a tax sale and took the title in the name of another, representing in letters written to the mortgagor, who resided in a distant place, that he had been unable to pay the taxes, that the land had been conveyed by a tax deed to a stranger, that the period of redemption had passed so that the interest of both had been lost, and where, about seven years after the mortgage was given, the mortgagee died, and thereafter the stranger in whose name the tax deed was taken conveyed the land to the heirs of the mortgagee without consideration, and where the mortgagee and his heirs had the possession of the land, which in the meantime had greatly increased in value, and where the mortgagor knew that the land had been sold for taxes and conveyed to another but did not know of the fraud of the mortgagee, nor that he was the purchaser at the tax sale, nor that the grantee in the tax deed was not a bona fide purchaser, until about fifteen years after the mortgage was made and executed, nor until about the time the action to redeem was begun, held, that the right of redemption of the mortgagor was not extinguished by laches or by the statute of limitation.

F. Dumont Smith, and L. M. Day, for the appellants.

Z. T. Hazen, R. H. Gaw, and Otis E. Hungate, for the appellee.

OPINION

JOHNSTON, C. J.:

The instrument executed by George W. Dusenbery to George H Bidwell, on August 22, 1894, was a deed, absolute on its face, and its purpose and effect are the principal points of dispute between the parties. It is contended by appellants that the agreement made when the instrument was executed was an attempt to create an express trust which, under the statute, can not be created by a parol agreement; while appellee insists that the instrument was understood and intended by the parties to be a mere security for the payment of a debt due...