Hall v. Pioneer Crop Care, Inc.

• Decision Date: 14 July 1973
• Docket Number: No. 46834,46834
• Citation: 212 Kan. 554,512 P.2d 491
• Parties: W. Milford HALL and Norma J. Hall, Appellees, v. PIONEER CROP CARE, INC., Appellant.
• Court: Kansas Supreme Court

Page 491

512 P.2d 491

212 Kan. 554

W. Milford HALL and Norma J. Hall, Appellees, v. PIONEER CROP CARE, INC., Appellant.

No. 46834.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. K.S.A. 21-2435 (repealed effective July 1, 1970) authorizes the party injured to recover treble damages for trees growing on his land damaged by the trespass of another in the aerial spraying of timberland with brush killer.

2. The purchaser of real estate under an unconditional contract for the sale of the property assumes the risk of destruction or deterioration of the property from the date of the execution of the contract of purchase and sale, where the loss is not due to the fault of the seller and where the seller at the time of the loss is not in default and is able to convey a good title.

3. The legality or illegality of a contract for the purchase of real estate is a separate and distinct transaction from a cause of action arising from a trespass upon the real estate.

4. A wrongdoer, after he has committed a trespass and is sued for it by the party injured, cannot interpose embarrassing and perplexing questions of ownership to litigate nice and intricate questions of title with the party in possession, who claims to be the owner, and who has color of title.

5. The purpose of statutes requiring every action to be prosecuted in the name of the real party in interest is to protect the defendant from being repeatedly harassed by a multiplicity of suits for the same cause of action. When a final judgment is a full, final, and conclusive adjudication of the rights and controversy and may be pleaded in bar to any other suit instituted by a different party, the defendant may not object on the ground that the plaintiff is not the real party in interest.

6. The doctrine of relation back is of ancient origin and has always been applied both at law and in equity, to meet the requirement of justice, to protect purchasers and to effectuate the interest of the parties to a contract for the sale of real estate.

7. Where land is sold by a transaction involving a contract of sale containing a stipulation for the subsequent performance of specified acts by each of the parties, and the deed is subsequently delivered to the grantee in accordance with the terms of the contract, such delivery completes the conveyance and the deed relates back to the date of the contract of sale and is not limited to the date when actual delivery is made to the grantee. 8. In an action for damages occasioned by the aerial spraying of the plaintiffs' timberland with brush killer, wherein the defendant trespasser seeks to challenge the ownership of the plaintiff in such timberland, purchased two days prior to the trespass in a transaction involving a contract of sale with the administrator of a decedent's estate, the fact that subsequent conditions must be fulfilled, whereby orders are to be procured authorizing and approving the sale by the probate court prior to the issuance and delivery of an administrator's deed, does not alter application of the rules stated in the foregoing syllabi.

Charles E. Henshall, of Henshall & Pennington, Chanute, argued the cause and was on the brief for appellant.

Richard C. Dearth, of Glenn Jones, Chartered, Parsons, argued the cause and was on the brief for appellees.

SCHROEDER, Justice:

This is an appeal in an action for damages occasioned by the accidental aerial spraying of the appellees' timberland with brush killer on May 23, 1970.

The case was tried on January 19, 1972, to a jury which returned a verdict in favor of W. Milford Hall and Norma J. Hall (plaintiffs-appellees) and against Pioneer Crop Care, Inc., (defendant-appellant) for actual damages in the sum of $1,500. The trial court withheld the entry of judgment upon the appellees' request to permit them to argue for treble damages pursuant to K.S.A. 21-2435 (repealed effective July 1, 1970.)

The trial court overruled the defendant's motion to dismiss and awarded judgment to the plaintiffs on February 29, 1972, in the sum of $4,500 plus 8% interest per annum thereon.

The trespass by the appellant is admitted since no appeal has been taken from the jury's finding that it trespassed on the appellees' property and damaged the trees thereon by spraying them with brush killer. (See, Thomas v. Dudrey, 208 Kan. 684, 494 P.2d 1039.)

The evidence produced at trial showed the appellees had entered into a contract for the purchase of the land in question on May 21, 1970, with Dale Eugene Miller, the administrator of the Vivian B. Miller estate. The real estate contract was a standard form. The only unusual feature was the seller's status as the administrator of the estate. It is to be noted the contract in question was signed May 21, 1970, two days before the trespass occurred.

The administrator's deed, which was dated August 31, 1970, was approved by the Probate Court of Neosho County, Kansas, on September 29, 1970. The deed shows the Probate Court of Neosho County, Kansas, was petitioned by the administrator on June 26, 1970, to sell at private sale the real estate in question.

The underlying issue presented is whether or not the appellees were the owners of the land in question and the real parties in interest as contemplated by K.S.A. 21-2435.

K.S.A. 21-2435 states in pertinent part:

'If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person; . . . the party so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs, . . .' (Emphasis added.)

The appellant contends the words 'on the land of any other person' as used in this statute mean the lands, tenements and hereditaments and all rights thereto, and interest therein, equitable as well as legal, of any other person. (See, K.S.A. 77-201, Eighth.)

The appellant contends the appellees on May 23, 1970, were neither the owners of an equitable interest in, nor the owners of the legal title to the real estate on which the trees in question were damaged. The appellant's theory is that the administrator's deed affirmatively revealed on June 26, 1970, the Probate Court of Neosho County, Kansas, on the petition of the administrator entered its order directing the administrator to sell, at private sale, the real estate in question; that on July 2, 1970, the real estate was appraised for $23,000 (the same amount shown as the sale price in the contract); that on August 31, 1970, the property was sold to the appellees; that on September 29, 1970, a report of the sale was approved and ratified by the probate court and the administrator ordered to give a deed to the property to the appellees.

It is argued by the appellant that an administrator takes only such powers as are conferred by law, and those who deal with him have notice of his duties and his powers and all limitations thereon. (Citing, Bartlett's Kansas Probate Law and Practice, p. 167.); and that an administrator has no statutory authority to sell real estate of the decedent except for the purpose of paying reasonable funeral expenses, expenses of last illness, wages of servants during the last sickness, cost of administration, taxes and debts. (Citing, Bartlett's Kansas Probate Law and Practice, p. 313.)

In the instant case the administrator sold the property to pay the funeral bill and debts of his decedent, and it was so alleged in his petition to sell the property.

The appellant continues with his argument that unless the petition alleges facts showing one or more of the statutory grounds for sale, as provided by law, the jurisdiction of the probate court will not be invoked by the filing of the petition, and the subsequent proceedings thereon in the absence of one or more of such grounds will be held to be void. (Citing, Bartlett's Kansas Probate Law and Practice, p. 313.)

The appellant further argues that contracts of an executor or administrator cannot be regarded as contracts of the deceased, and in the absence of authority given by will or by statute, a personal representative cannot make an executory contract binding on the estate he represents. (Citing, 31 Am.Jur.2d, Executors and Administrators, p. 95.)

What right did the appellees have in and to the subject real estate on May 23, 1970? The appellant contends they had no rights in and to the real estate, but did have a contract they could enforce against the administrator of the estate to compel him to deliver a deed to the property to them after he had gone through the statutory procedure which gave him a right to make a deed.

It is argued by the appellant the appellees should have required the administrator to sue the appellant in his fiduciary capacity for the tree damage before the appellees paid for the farm. The appellees paid for the farm and then brought suit in their own names for the trespass. The appellant contends the appellees behavior in this respect amounts to either: (1) A waiver of the alleged damage by the appellees at the time they paid the balance due on the purchase of the farm; or (2) constituted an assignment by the administrator of the cause of action, in tort, owned by his decedent's estate, against the appellant, to the appellees.

The appellant relies upon law to the effect that a tort action is not assignable. (St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P.2d 1062.)

Insofar as the record discloses, the appellees were in...