Freeman v. Funk

• Decision Date: 07 October 1911
• Docket Number: 17,043
• Parties: S. F. FREEMAN, as Guardian, etc., Appellee, v. RHODA FUNK, Appellant
• Court: Kansas Supreme Court

117 P. 1024

85 Kan. 473

S. F. FREEMAN, as Guardian, etc., Appellee, v. RHODA FUNK, Appellant

No. 17,043

Supreme Court of Kansas

October 7, 1911

Decided July, 1911.

Appeal from Mitchell district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--Adverse Possession--Trusts--Agreement to Reconvey. In 1888 the plaintiff's ward, in order to avoid the payment of a note for one hundred and seventy-five dollars given for a patent fence machine and to prevent his liability thereon from becoming a lien on his homestead conveyed the latter to his wife. In a short time she reconveyed, and soon thereafter departed this life. In the same year he deeded his homestead to a daughter with the understanding that she should deed it back to him when the note should be out of the way. He continued for more than fifteen years to occupy the land, asserting and exercising dominion over it. When requested to reconvey, the daughter, fearing that he contemplated remarriage, delivered to him a life lease made out on a warranty deed blank, which he supposed for some time to be a good deed of conveyance. In 1895 he was adjudged insane and placed in an asylum, symptoms of mental unsoundness having been manifested as far back as 1888. The daughter was shown to have made numerous statements that she did not pretend to own the land but intended to deed it back. During the father's occupancy he placed valuable improvements upon the land, rented portions of it at times and collected the rent, and repeatedly offered it for sale. Held, that the facts warranted a finding of adverse possession.

2. QUIETING TITLE--Homestead--Fraudulent Conveyance. The land being the homestead of the grantor, his creditors could not have been defrauded by his conveyance thereof.

3. QUIETING TITLE--When Occupation Not Subservient. Under the conditions and circumstances indicated such occupancy was not in subservience to the title of the grantee.

4. QUIETING TITLE--Adverse Possession--Good Title. The title fully vested by such adverse possession for the statutory period can be quieted as against the daughter in a suit by the father's guardian.

5. QUIETING TITLE--Adverse Possession--Affirmative Rights. Such adverse possession and the operation of the statute of limitations created a title which can be used either offensively or defensively.

Charles L. Hunt, and Park B. Pulsifer, for the appellant.

J. E. Tice, Ira N. Tice, C. L. Kagey, and R. M. Anderson, for the appellee.

OPINION

WEST, J.:

In 1888 Hiram Moger, a resident of Mitchell county, deeded his homestead to his wife for the purpose of avoiding payment of a note for one hundred and seventy-five dollars given for a patent fence machine. During the same year the property was deeded back to him by his wife and he deeded it to his daughter, Rhoda Funk, the wife in the meantime having died. Not counting a temporary absence, he continued to live on the land until 1905, when he was adjudged insane and taken to an asylum. In the meantime he had claimed the land as his own, had put valuable improvements thereon, had rented portions of it and collected the rents, and had offered it for sale. About 1895, after having erected a house and barn on the place costing upwards of one thousand dollars, he desired the land deeded back to him by Mrs. Funk, but she, being fearful that he contemplated a second marriage, made out on a warranty deed form a life lease and delivered it to him. His guardian brought this action to settle for him the title to the land. The fourth, or third amended, petition was filed containing two causes of action, the first to quiet title and the second for specific performance of an alleged contract to reconvey. To this pleading a demurrer was interposed on the grounds that the second count did not state a cause of action, that the alleged cause was barred by the statute of limitations, and that several causes of action were improperly joined. This demurrer was overruled and an answer filed containing a general denial and an admission that the defendant claimed to be the owner of the land, setting up the deed from her father, her life lease to him, a breach by the father of its provision to pay taxes for the year 1907, and that the second cause of action was barred, and praying that her title be quieted. To this answer the plaintiff filed an amended reply verified on information and belief, containing a general denial and a claim that the deed was secured through false representations and undue influence when the grantor was mentally weak and incompetent. A demurrer to this amended reply, except the general denial, was overruled.

Upon the trial the court found that the deed was procured by undue influence and that the defendant held the same in trust for the benefit of her father, but that his right to recover on this ground was barred; but after making extended findings of fact the conclusion was reached that the plaintiff had a right to have his title quieted by reason of undisputed, quiet, peaceable, exclusive and adverse possession since 1889. The defendant appeals and presses forty-three assignments of error, five relating to pleadings, twenty-eight to the findings of fact and conclusions of law, and ten to the reception of evidence.

Owing to the trial court's restriction of the case to the issues joined upon the first cause of action, any errors which may have occurred in reference to the various pleadings can not materially prejudice the defendant.

We have examined the findings and the evidence, giving careful heed to the challenge made to many items in the abstract of the appellee, and conclude that the decision is well supported; and in view of the fact that the cause was tried by the court without a jury we do not find any evidence wrongfully admitted which could by any fair reasoning be held to have led the court to a wrong determination. There were, as usual, conflicting claims and conflicting testimony, but there is abundant evidence in the record to warrant the finding that from 1888 until his removal to an asylum in 1905, Hiram Moger manifested symptoms of mental unsoundness which culminated in a mental and physical condition both pathetic and repulsive. Many statements testified to by various witnesses as having been made by the defendant afford sufficient basis for the finding that she took the deed with the understanding that the land was to be reconveyed upon the request of the father and that the purpose was merely to hold the title until the patent fence matter should be out of the way. The guardian's attorney testified that shortly before the suit was brought she said to him, among other things, "I have n't any interest in the land. I don't claim to own it," and that she was about to sign a statement to that effect when her husband interposed and objected.

Another witness testified that in a conversation between the Funks and Moger the latter said he had deeded the place to Mrs. Funk until he could get some trouble about the fence machine settled, when they were to deed it back to him, and that both Mr. and Mrs. Funk said it (the statement) was all right. Defendant herself, upon the stand, in answer to the question as to whether there was any talk or promise on her part that she would deed the property back at any time, answered "No, sir; no specified time." A brother-in-law testified that she told him she would make the deed back to. Moger whenever Moger called for it. Another brother-in-law testified that she said she did not pretend to own the land, but that she would not deed it back to Moger because she wanted to keep him from disposing of it. She wrote a letter to her sister in which she stated that her father was mad about the deed to the land; that she had made him what the lawyer called a life lease; that a woman wanted to marry him to get the farm; "Father can use the land as long as he lives and when he dies it will come to us children and all of us will get the same share. He can not deed it away."

Of course if she owned the land it would not descend to her father's heirs and the only way the others could get a share would be by deed from the owner.

The probate judge and others testified to her statement that she did not pretend to own the land, or that the deed was to save the farm from the hands of parties who would take advantage of her father, and she intended to deed it back to him.

Considering the relation of the parties, the mental condition of the father, the subsequent conduct and statements of both, the continued unresisted acts and assertion of dominion and ownership for more than fifteen years, they fully justify the conclusion that a title by adverse possession had ripened, unless there be some rule of law preventing such conclusion.

It is asserted that the deed was made for the purpose of defrauding creditors, and therefore as against the grantor must be held good. Whatever the law may have been thought to be at that time it is certainly now settled that the property was the grantor's homestead and therefore no creditor could be defrauded by its conveyance. (Mull v. Jones, 33 Kan. 112, 5 P. 388: Cross v. Benson, 68 Kan. 495, 75 P. 558; Weaver v. Bank, 76 Kan. 540, 94 P. 273; Shattuck v. Weaver, 80 Kan. 82, 101 P. 649.)

The defendant also urges that possession by the grantor must be presumed to be in subservience to the title of the grantee. This is no doubt true as a general proposition when there are no circumstances leading to a contrary conclusion, but when the grantor constantly and persistently for nearly seventeen years claims ownership and exercises all the rights incident thereto and the grantee from time to time concedes the possession of only a paper title which is to be revested upon request of the grantor...