Guild v. Althouse

• Decision Date: 10 June 1905
• Docket Number: 14,183
• Citation: 71 Kan. 604,81 P. 172
• Parties: GEORGE A. GUILD et al. v. HARMAN ALTHOUSE
• Court: Kansas Supreme Court

81 P. 172

71 Kan. 604

GEORGE A. GUILD et al. v. HARMAN ALTHOUSE

No. 14,183

Supreme Court of Kansas

June 10, 1905

Decided January, 1905.

Error from Nemaha district court; WILLIAM I. STUART, judge.

STATEMENT.

IN 1885 Harman Althouse, his brother John A., and his sister, Hannah Baer, owned the northwest quarter of section 23, in township 2 south, of range 14, in Nemaha county, Kansas, as follows Harman owned the north half of the north half and an undivided one-half of the south half; John A. owned the south half of the north half and an undivided one-fourth of the south half; Hannah Baer owned the remaining undivided one-fourth of the south half.

In that year Hannah Baer brought a suit in the district court of the county against her brothers for the partition of the south half of the quarter-section, and the court, having jurisdiction of the parties, adjudged the respective interests as above, and appointed commissioners to partition the land. The commissioners reported that partition could not be made without manifest injury, and appraised the land at $ 2400. John A. elected to take the land at the appraised value. A. sheriff's deed was made to him and the sale was confirmed. The record shows that he paid his sister and brother for their respective interests. In the same year, and after the partition suit, the brothers agreed that Harman should own the south half of the north half and John A. the south half of the quarter, except that the latter should have about two acres around the residence on the south half of the north half and Harman should have a strip of equal area off of the south half of the quarter-section. The court further found that each immediately took possession of the land accorded to him by the agreement and had ever since continued in open, notorious, exclusive possession of the same, except that Harman continued to pay taxes on the undivided half of the south half of the quarter-section, and in 1889, with his wife, gave John A. a quitclaim deed to the south half of the north half, while John paid taxes on the south half of the north half and repeatedly mortgaged the same. Yet the brothers divided the land in accordance with their agreement by a partition fence, one part of which was built and, until his death, maintained by John A., and afterward by his widow one of the plaintiffs in error, while the other part was built and maintained by Harman.

During all the years John A. repeatedly told the neighbors, even after he received the quitclaim deed, that the north "eighty" was Harman's and the south "eighty" was his but that they had not fixed up their papers. When his attention was called to the fact that he was paying taxes on a part of Harman's land and Harman was paying on a part of his, he said it made no difference as the taxes were about the same.

On January 23, 1901, John A. and his wife, Lizzie B., made and acknowledged a warranty deed for the south half of the north half (excepting the residence tract) and to a strip off of the north side of the south half to Harman, and by agreement with Harman delivered the deed to plaintiff in error George A. Guild, with instructions to deliver the same to Harman when the latter and his wife should make and deliver their deed for the undivided one-half of the south tract, excepting the strip. On the same day John A. made a will in favor of his wife, Lizzie, for all of his property, and soon thereafter died.

At the time this warranty deed was made there was a mortgage covering the land therein described as well as the southern tract, which mortgage was made by John A. and wife. This mortgage was afterward paid by the widow. After this mortgage was paid Harman and wife made and tendered a deed conveying the undivided one-half of the south tract to the widow, tendered it to George A. Guild and demanded the deed made by John A. and wife just before his death, and Guild refused to deliver the same without the consent of the widow, which she refused.

Soon thereafter the widow caused a notice to quit possession of the south half of the north half of the quarter-section to be served on Harman, and thereupon Harman brought this suit, April 23, 1903, in the district court to compel Guild to deliver the deed held in escrow by him and to quiet his title to the land therein described.

The court made voluminous findings of fact, of which this statement is an abstract, and rendered judgment in favor of the plaintiff, and Guild and the widow bring the case here for review.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Deed in Escrow. A deed with...