Ennis v. Tucker

• Decision Date: 09 May 1908
• Docket Number: 15,384
• Parties: JOHN B. ENNIS v. FRANK TUCKER
• Court: Kansas Supreme Court

96 P. 140

78 Kan. 55

JOHN B. ENNIS v. FRANK TUCKER

No. 15,384

Supreme Court of Kansas

May 9, 1908

Decided January, 1908.

Error from Logan district court; JAMES H. REEDER, judge.

STATEMENT.

THIS is a suit to quiet title. Frank Tucker was in possession of the real estate in controversy, claiming title thereto under a tax deed. On September 1, 1903, he commenced this suit in the district court of Logan county, making W. W. Drury, the original owner of the land, defendant.

W. H Wagner was the attorney for Tucker, and John B. Ennis represented the defendant. While the suit was pending, and on April 30, 1904, Ennis purchased the interest of his client in the land, obtaining a quitclaim deed therefor, which he withheld from record. Afterward Ennis entered upon negotiations, apparently in behalf of his client, to purchase the claim of Tucker, and to this end addressed a letter to W H. Wagner, which reads:

"OAKLEY KAN., August 1, 1904.

"W. H. Wagner, Russell Springs:

"DEAR SIR--Concerning the Tucker-Drury case I have not been able to get my client much in humor to pay anything 'for peace,' and have not been able to make any definite offer in the matter till now. His claim is that your client has had more than the taxes by grazing over it for many years with his flocks, and this is a substantial claim in the law. If it was worth anything for that purpose, it was worth the amount of the yearly taxes. Again, your client's claim is barred by the statute, and my judgment is that in a trial you would never get the tax deed in evidence. I only suggest these things to show that your claim is a weak one so far as recovery is concerned. Well, I will do this with you: I will, in order to buy peace, and without prejudice to the rights of my client in any way in the suit, we will pay you $ 50 and the cost of the suit to be divided, and settle the suit and by proper journal entry dismissing your client's petition and quieting the title as to Tucker, in my client. I think this is a liberal offer, considering the equities in the case.

Yours truly,

JOHN B. ENNIS."

On January 26, 1905, Wagner, for his client, began negotiations with W. W. Drury for the purchase of his interest in the land, and addressed a letter to him which reads:

"W. W. Drury, Bolivar:

"DEAR SIR--What is the least you will take for deed to N. W. 1/4, 34, 12, 33, in this county, except taxes, cash net to you? Please let me hear from you by return mail."

On February 4, 1905, Wagner again wrote Drury, as follows:

RUSSELL SPRINGS, KAN., 2-4-'05.

"W. W. Drury, Bolivar, Mo.:

"DEAR SIR--The records here still show that you have an interest in the N. W. 1/4, 34, 12, 33, in this county, and I would like to get a quitclaim deed from you to this land, if you don't want too much for it. And I would like to know the very least you will take for the same, net cash to you? Please answer by return mail."

Drury answered the last letter as follows:

"LYNCH, NEB., 2-12, 1905.

"W. H. Wagner, Esq., Russell Springs, Kan.:

"DEAR SIR--Your second letter to hand, in regards to land in Logan county, Kansas, N. W. 1/4, 34-12-33. In regards will say if you like, you can write me and make your best offer for a quitclaim deed, and I will consider it. You can address me as you have and it will be forwarded to me.

Yours resp.,

W. W. DRURY, Bolivar, Mo."

On February 16, 1905, Wagner sent a letter to Drury enclosing a quitclaim deed ready for execution, and therein offered to pay $ 40 for the conveyance, with a request that the deed be executed and returned to the county treasurer of Logan county, who would pay the amount offered. The deed was returned and the money paid according to this arrangement. On February 27, 1905, the deed was recorded. On March 3, 1905, Ennis wrote to Tucker as follows:

"Mr. Frank Tucker, Burr Oak:

"DEAR SIR--I have delayed in answering your letter of December 26 in regard to amount wanted by you for release of any claim you hold on the Drury quarter. Your claim is altogether too high for consideration, but we will do this and nothing further and without prejudice to our client's rights in the suit, and for the purpose of effecting a peaceful settlement of the matters in litigation. We will give you $ 100 in cash and take a decree in Drury's favor in the case, and D. to pay the court costs in the case. We feel that this is more than you will get in case of a trial, but be that as it may, this is the very best that we will do in the matter. After considering the matter, drop me a line as to your conclusion in the premises, and oblige,

JOHN B. ENNIS."

On April 8, 1905, Ennis again wrote to Tucker as follows:

"Mr. Frank Tucker, Burr Oak:

"DEAR SIR--I have yours of March the 13th and in reply will say there is $ 75 between us and we will split the amount and offer you $ 37.50 more, making the total offer $ 137.50 and we pay the costs in the action, and take a decree quieting the title in us. This is the very best we will do and the offer holds good until the 15th of this month, and if not accepted the offer is withdrawn. Court sets at the Springs on the 18th of this month, and I shall be absent from here after the 15th, and if you have a mind to take the amount offered, let me know before that time, without fail, as after that I would not get your letter in time.

Yours truly,

JOHN B. ENNIS."

Ennis recorded his deed April 21, 1905. Wagner acted as agent and attorney for Tucker in procuring the deed from Drury. He had no notice or knowledge of the deed held by Ennis until after it was recorded. Ennis did not wish Wagner or Tucker to know of the conveyance by Drury to himself, as he thought a better settlement could be made if they were ignorant of it. For this reason the conversation and correspondence between Ennis and Wagner were such as to indicate that Drury was the owner of the land and was making a real contest as defendant in the suit. In this way Wagner was deceived and induced to purchase the conveyance from Drury. At the first term of the district court after this deed had been obtained Wagner gave notice that he had purchased the interest of Drury to the land and proposed to dismiss the case. To this Ennis objected and the suit was continued. Afterward Ennis substituted himself as defendant in place of Drury, and filed an answer and cross-petition alleging his ownership of the land and asking for a decree quieting his title thereto. Finally the case was tried and Tucker obtained a decree quieting his title to the premises in controversy. Under the former decisions of this court the tax deed held by Tucker is conceded to be void on its face.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

QUITCLAIM DEEDS--Notice--Priority. An unrecorded quitclaim deed will be held to be inferior and subordinate to a subsequent quitclaim deed from the same grantor, where the holder of the later deed is a purchaser in good faith, for value, is ignorant of the former conveyance, and when the existence of the prior deed was so concealed that it could not be discovered by the exercise of reasonable diligence on the part of the subsequent grantee.

John B. Ennis, pro se.

W. H. Wagner, Lee Monroe, and George A. Kline, for defendant in error.

OPINION

GRAVES, J.:

The tax deed being void, the title of the parties to the land in controversy must depend upon their respective...