Ehrhart v. Ehrhart
| Decision Date | 11 March 1922 |
| Docket Number | 23,363 |
| Parties | AMELIA F. EHRHART et al., Appellees, v. NICHOLAS J. EHRHART et al., Appellants |
| Court | Kansas Supreme Court |
Decided January, 1922
Appeal from Jackson district court; JAMES H. WENDORFF, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
TENANT IN COMMON -- Action to Set Aside Fraudulent Deed -- Partition. Mary Amelia Ehrhart died in August, 1904, leaving surviving her three children who are the plaintiffs, and her husband, the defendant, who is their father. At her death she owned eighty acres of land by a conveyance from her parents made in 1903 on the condition that she should pay the grantors on the first day of January of each year during the lifetime of the grantors, or either of them, not less than $ 80 nor more than $ 100. Time was made the essence of the contract, and the failure to make the payments punctually made the contract void. After her death the defendant continued to reside on the land and made the annual payments until January 1, 1919, when he made default. The children in the meantime had left home. On September 3, 1919, the defendant obtained from the grandfather of the plaintiffs the surviving grantor in the first deed, a quitclaim deed which recited that it was made in lieu of the former deed and because the conditions of the former deed had been broken. It provided for the same payments as the first deed. In an action brought by the children to set aside the second deed and to obtain their rights, it is held that the evidence was sufficient to sustain a finding that upon the death of Mary Amelia Ehrhart, the defendant and plaintiffs became the owners as tenants in common subject only to the interest of the grantors; that by the second deed the defendant acquired no right or interest to the exclusion of his children, and that, subject to the rights of the surviving grantor, each of the plaintiffs is the owner of an undivided one-sixth interest, and the defendant of an undivided one-half interest.
Floyd W. Hobbs, of Holton, and A. E. Crane, of Topeka, for the appellants.
E. R. Sloan, of Holton, Lee Monroe, Guy L. Hursh, and C. M. Monroe, all of Topeka, for the appellees.
On January 12, 1903, Jacob Bausch and wife conveyed by warranty deed eighty acres of land in Jackson county to their daughter, Mary Amelia Ehrhart, on the express conditions that the grantee should pay the grantors on the first day of January of each year during the lifetime of the grantors or either of them "not less than $ 80 nor more than $ 100 or so much thereof as said grantors may elect to charge." Time was expressly made the essence of the contract, and it was agreed that if the grantee "shall fail to make the payments herein specified, and each of them, punctually upon the strict terms and time above limited" the deed should, so far as it bound the grantors become "utterly null and void," and all rights of the grantee should "entirely cease and determine and revert to and revest in said grantors, without any declaration of forfeiture or act of reentry, or any other acts to be performed by said grantors." On the delivery of the deed, Mary Amelia Ehrhart, who was the wife of Nicholas Ehrhart, defendant, took possession. She died in August, 1904, and left surviving, the husband and three children. The family continued to reside on the land, but as the children grew older trouble arose between them and their father, and they left home. For fifteen years, the defendant, Nicholas Ehrhart, complied with the conditions of the deed and made the annual payments but failed to pay the money due on January 1, 1919. On September 3, 1919, Jacob Bausch, grandfather of the plaintiffs, grantor in the first deed, executed and delivered to Nicholas Ehrhart a quitclaim deed to the land which contained the following condition:
"This deed is made in lieu of the deed made by grantor and wife for said described premises to Mary Amelia K. Bausch Ehrhart March 3, 1903, the conditions of said deed having been broken in that the sum of money therein provided to be paid the first day of January each year remains unpaid from January 1, 1919, by reason of which grantee demanded possession of said real estate and reentered and possessed the same, and being in possession thereof this deed is made and upon the conditions also, that the grantee, Nicholas J. Ehrhart, shall pay to first party, grantor, not less than $ 80, nor more than $ 100, on the first day of January each year during first party's life and...
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Rutland Savings Bank v. Norman
...held other and different interests and additional obligations and duties, as the parties do in this case. In the case of Ehrhart v. Ehrhart, 110 Kan. 759, the received a deed from her parents reserving payment of $ 100 per annum as long as either of them might live. The daughter died. Her h......