Henne v. Wood
| Decision Date | 10 May 1941 |
| Docket Number | 35158. |
| Citation | 113 P.2d 98,153 Kan. 673 |
| Parties | HENNE v. WOOD et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action to quiet title by one whose title was a sheriff's deed in mortgage foreclosure, against holder of mineral deed who had not been made a defendant in the mortgage foreclosure, holder of mineral deeds was not "estopped" to claim under the mineral deed because he allegedly failed to disclose his title, fraudulently represented to plaintiff that he was a party to foreclosure action, and that his rights under the mineral deeds had been foreclosed unless he redeemed. Gen.Stat.1935, 20-1009 60-3102.
Where alleged fraud was practiced by defendant in 1931 or 1933, and the means of discovery of the fraud were in the public records, plaintiff could not claim, in action brought in 1940 to quiet title, that he did not discover the fraud until 1939, and action was barred by statute providing that an action for relief on ground of fraud must be brought within two years after discovery of fraud. Gen.St.1935, 60-306 subd. 3.
Plaintiff whose title was a sheriff's deed in foreclosure, sued to quiet title against the holder of a mineral deed who had not been made defendant in the foreclosure, alleging defendant was estopped to claim under the mineral deed because of certain statements he had made to plaintiff within the period of redemption. Held, under the facts pleaded, plaintiff's contention cannot be maintained.
Appeal from District Court, McPherson County; John G. Somers, Judge.
Action by Francis Henne against Homa Wood and others, to quiet title to realty, wherein defendants filed a cross-petition seeking to quiet title. From a judgment sustaining defendants' motion to strike from plaintiff's reply allegations deemed vital to plaintiff's right to recover, the plaintiff appeals.
Judgment affirmed.
James A. Cassler and L. H. Ruppenthal, both of McPherson, for appellant.
Chas G. Yankey, Harvey C. Osborne, John G. Sears, Jr., Verne M. Laing, and G. K. Purves, Jr., all of Wichita, for appellees.
This was an action to quiet title to an 80-acre tract of land in McPherson county. The trial court sustained defendants' motion to strike from plaintiff's reply allegations deemed vital to plaintiff's right to recover. Plaintiff has appealed.
Briefly, the pleadings may be summarized as follows: Plaintiff in his petition alleged that he is the owner and in the actual possession of the described land; that defendants claim some estate in or lien on the property, the nature of which is unknown to plaintiff; that all such claims were subject to and inferior to plaintiff's title, and the court was asked to require defendants to set up their claims. The prayer was for judgment excluding defendants from any interest in, claim to, or lien upon the property and quieting plaintiff's title thereto as against defendants.
Defendants' answer contained a general denial with the admission that they claim an interest in the land; alleged that on November 6, 1925, Carl J. Hanson and wife were the owners of the fee simple title to the land and on that date executed to F. A. Smith a mineral deed for an undivided one-half interest in and to all the oil and gas and other minerals in or under the land, or which may be produced therefrom, which deed was duly recorded December 7, 1925; that on September 10, 1926, F. A. Smith and wife, by a mineral deed, conveyed to Virgil O. Wood all of the oil, gas and mineral rights previously conveyed to him by Carl J. Hanson and wife, which mineral deed was duly recorded September 23, 1926; that on November 12, 1930, Virgil O. Wood and wife, by their mineral deed, conveyed to the defendant Homa Wood an undivided one-eighth, and to Robert H. Wood an undivided one-eighth, of all the oil, gas and other minerals in and under the land, or which may be produced therefrom, which deed was recorded November 14, 1930; that on January 10, 1940, Robert H. Wood and wife conveyed to the defendant Homa Wood their undivided one-eighth interest in and to all the oil, gas and other minerals in and under or that may be produced from the said land, which mineral deed was duly recorded January 19, 1940, and that by reason of these conveyances the defendant Homa Wood is the owner of an undivided one-fourth interest in the oil, gas and other minerals in or under or which may be produced from the land in question. The prayer was for judgment in harmony with these allegations, and by cross-petition the defendants sought to quiet their title as against plaintiff in and to the undivided one-fourth interest of the mineral rights.
The reply contained a general denial, and a specific denial that Carl J. Hanson and wife were the owners of the fee simple title to the land on November 6, 1925, and alleged that prior thereto and on January 25, 1923, Carl J. Hanson and wife had executed to the Central Trust Company a mortgage on the land to secure their note for $2,500, which mortgage was duly recorded. It is further alleged that about April 16, 1931, the Central Trust Company brought an action to foreclose the mortgage, in which action a judgment of foreclosure was rendered and an order of sale issued under which the property was sold by the sheriff on August 10, 1931, and bid in by the plaintiff, the Central Trust Company, which sale was confirmed on September 18, 1931, and a sheriff's certificate of purchase was duly issued; that about September 22, 1931, the sheriff's certificate was duly assigned to plaintiff, to whom a sheriff's deed was issued February 13, 1933. In this foreclosure action F. A. Smith and wife and Virgil O. Wood and wife were made parties defendant, but Robert H. Wood and the defendant Homa Wood were not made parties defendant.
It is alleged that Virgil Wood, Robert H. Wood and Homa Wood are brothers and F. A. Smith is their brother-in-law; that after plaintiff had purchased the certificate of purchase for the property Homa Wood, acting for himself and for his two brothers and brother-in-law, approached plaintiff and wanted to buy the certificate of purchase, but terms were not agreed upon; that Homa Wood, with intent of deceiving plaintiff, fraudulently stated that all of them were parties defendant in the foreclosure action, and that the rights of all of them under the mineral deeds had been foreclosed, that they intended to redeem the property from the foreclosure sale and would do so; that relying upon these representations plaintiff was deceived and did not investigate the record in the foreclosure action to determine whether or not Robert H. Wood and the defendant Homa Wood were parties defendant in the action, and that he did not actually learn they were not parties to the action and that their interests under the mineral deeds were not foreclosed thereby until in the spring of 1939. We have attempted to state only the gist of the allegations of the reply, which was twice amended, and which altogether is quite lengthy.
In 42 C.J. 164, 165, it is said: ***"
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...it is well settled that the purchaser does not buy more than is sold. See Simmons v. Clark, 151 Kan. 431, 433, 99 P.2d 739; Henne v. Wood, 153 Kan. 673, 113 P.2d 98, and authorities there The trial court was of the view that under the definition of the word 'royalty', as defined in Bellport......