Hentig v. Redden

• Citation: 26 P. 701,46 Kan. 231
• Parties: HENTIG v. REDDEN.
• Decision Date: 09 May 1891
• Court: United States State Supreme Court of Kansas

26 P. 701

46 Kan. 231

HENTIG v. REDDEN.

Supreme Court of Kansas

May 9, 1891

Syllabus

1. A judgment or degree of a court of competent jurisdiction is not only final as to the subject-matter, but also as to every other matter which the parties might have litigated in the case, and which they might have had decided.

2. Where a judgment is rendered in this state for the plaintiff in an action in the nature of ejectment, the title which he recovers is thereby established as against the defendant.

3. Where an action in the nature of ejectment is pending between parties, and the defendant, during the pendency of the action, obtains a new or another title, this title, to be of any benefit, must be asserted in that action before judgment is rendered against the defendant.

Error from district court, Jackson county; ROBERT CORZIER, Judge.

F. G Hentig and Lloyd D. Simpson, for plaintiff in error.

Redden & Schumacher, for defendant in error.

OPINION

HORTON, C. J.

This was an action in the court below, brought on the 18th day of July, 1887, by Mrs. A. J. Hentig against J. W. Redden, asking that her title to four certain lots on Clay street in the city of Topeka be quieted, and that the defendant be forever barred from asserting any claim or interest to said lots or any part thereof. The defendant filed an answer, containing a general denial, and also the plea of res adjudicata . The place of trial of the action was transferred from the district court of Shawnee county to the district court of Jackson county. Trial was there had before the court without a jury. No special findings were requested or made by the trial court, but the court, after hearing the evidence and the arguments, made a general finding in favor of the defend ant and against the plaintiff. Of this judgment, plaintiff complains.

We need refer only to the plea of res adjudicata, and the evidence offered in support thereof. Prior to March 1, 1878, J. J. Puterbaugh, of Logansport Ind., was the owner of the lots in controversy. On March 1, 1878, Puterbaugh, then residing in Logansport, Ind., made an assignment of certain real and personal property to Thomas H. Bringhurst, in trust for the benefit of his creditors. The lots in dispute were not mentioned in the deed of assignment. On the 22d of August, 1883, J. J. Puterbaugh and wife sold and conveyed by quitclaim deed to J. W. Redden, for the consideration of $120, the lots described in the petition. On the 2d day of August, 1878, Thomas H. Bringhurst sold and conveyed by quitclaim deed to Charles S. Puterbaugh, of Cass county, Ind., the lots for the consideration of $9. On the 25th day of September, 1883, Thomas H. Bringhurst sold and conveyed the same lots to Mrs. A. J. Hentig by quitclaim deed for the consideration of $1. On the 18th day of May, 1887, Charles S. Puterbaugh sold and conveyed to Mrs. A. J. Hentig the same lots by quitclaim deed for the consideration of $10. There is also evidence that he executed to Mrs. Hentig a prior deed, intending to convey these lots, in 1883. On October 1, 1883, J. W. Redden brought his action against Mrs. A. J. Hentig in the district court of Shawnee county in the nature of ejectment to recover the possession of the same lots. Mrs. A. J. Hentig, in her answer in that case, alleged that J. J. Puterbaugh, prior to the execution of his deed of August 22, 1883, to J. W. Redden, had sold and assigned all of his real and personal property to James H. Bringhurst, in trust for the benefit of his creditors. She further answered that she was the owner and in the possession of the lots by virtue of a tax-deed. Hentig v. Redden, 35 Kan. 471, 11 P. 398.

Upon the trial Charles S. Puterbaugh testified as follows: "Question. Was it at public or private sale that you bought these lots? Answer. Public sale. Q. Was your father, Jacob J. Puterbaugh, present at that sale? A. If all his real estate was sold at one sale, he was present; if not, I am not sure. Q. What was the price at which the lots were sold to you by the assignee? A. One dollar each, I think. Q. Did you pay for them? A. Yes, sir. *** Q. When did you make the first deed to Mrs. A. J. Hentig? A. I think it was in 1883 I made the first deed to Mrs. A. J. Hentig. Q. Did she pay you for those lots? A. Yes, sir; she gave me two hundred dollars, I believe. Q. Did you make her a deed for it? A. Yes, sir. Q. What became of that deed? A. Sent it to her. I have never seen it since, to the best of my knowledge. Q. Did you sell those lots and convey them in that deed by the same description as that used by the assignee in his conveyance to you? A. I believe I did, not knowing there was an error in the deed of assignment. Q. What became of that assignment? A. I sent it to her. *** Q. Did you get any money for the second deed you made? A. Yes, sir; I did. Q. How much money did you get that time? A. Ten dollars. Q. How did you come to make this second deed? A. Some time in 1886 Hentig wrote me, claiming there was some error in the deed, and asked for a quitclaim later, in 1887. He sent to Judge Nelson a quitclaim deed for me to execute, which I did."

J. W. Redden testified on the trial, among other things, as follows: "Were you present in the court-room in Topeka, Shawnee county, Kansas, when the case of J. W. Redden vs. Hentig was on trial, which involved the title to this same property? Answer. I was. Question. An action of ejectment of this same property? A. Yes, sir. Q. Did you see F. G. Hentig there? A. I did. Q. What statement did he make then in your presence or hearing relative to his wife then having a deed from Bringhurst or Charles Puterbaugh for the property in controversy? A. Mr. Hentig had in his hand a paper that he said, I think, (he addressed the conversation to Mr. Harris,) was a deed from Charles S. Puterbaugh to A. J. Hentig for these lots in controversy; but he did not propose to offer it in evidence at that time. He had thought of doing it, but he would not. Q. What was the first name of the Puterbaugh that he said the deed was from? A. Charles S. Puterbaugh,-I think it was S. Q. When was this conversation? A. My recollection now is that it was in the trial of the case in the spring of 1885. Q. At the time the case was being tried, and before the trial was over with, and before judgment was rendered? A. Yes, sir; during the progress of the case."

H. H Harris testified: "Were you present at the trial of the case of J. W. Redden vs. A. J. Hentig in Shawnee county when the title of this property was in dispute? Answer. Yes, sir. Question. When was that? A. February, 1885. Q. Did you see F. G. Hentig at that time? A. Yes; he appeared for himself and his wife. Q. He was also a witness? A. Yes, sir. Q. What statement did he make about his wife having a deed from Charles S. Puterbaugh? A. After we had submitted the evidence upon each side, and submitted to the court, (Judge MARTIN, who was trying it pro tem .,) Mr. Hentig got up and pulled a paper out of his pocket that looked like a...