Hockman v. Thuma

• Decision Date: 06 February 1904
• Docket Number: 13,490
• Parties: OLIVER C. HOCKMAN et al. v. CHARLES E. THUMA et al
• Court: Kansas Supreme Court

75 P. 486

68 Kan. 519

OLIVER C. HOCKMAN et al. v. CHARLES E. THUMA et al

No. 13,490

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Error from Marshall district court; SAM KIMBLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONVEYANCES--Secret Equities--Grantor in Possession a Tenant by Sufferance. Possession of real estate by the grantor in a warranty deed does not impart notice to a purchaser from the grantee of secret equities existing in favor of the person occupying the land. The possession in such case by one who has conveyed the land indicates that he is holding the premises for a temporary purpose only, as a tenant at sufferance of his grantee. (McNeil v. Jordan, 28 Kan. 7.)

Glass & Polack, and W. W. Redmond, for plaintiffs in error.

Mann & Hemphill, and James Falloon, for defendants in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

In February, 1890, Oliver C. Hockman, an unmarried man, was the owner of 160 acres of land which he occupied with one Cynthia Yohe with whom he was living. The land was encumbered by a first mortgage to one Conrad for $ 1500 and interest, and by a second mortgage to one Koester for $ 324 and interest. For the purpose of raising money to pay these debts the plaintiff in error conveyed the land to his father, Daniel Hockman, by warranty deed, and thereafter he and his father executed to George S. Hooker a note for $ 2000, secured by a first mortgage on the land, and a note and second mortgage to Koester for $ 200. At the same time Daniel Hockman and wife, parents of Oliver C. Hockman, entered into a written agreement with the latter to reconvey the premises to him on his payment within ten years of the two notes last mentioned, which were secured by mortgages on the land. The agreement provided for the appointment of Oliver C. Hockman as agent for Daniel Hockman, and authorized the latter to select another agent if he desired to rent the land and apply the profits to the payment of said debts. The contract was left with Charles F. Koester, a banker, for safe-keeping. It was not recorded.

On March 2, 1892, Oliver C. Hockman, who had occupied the premises since the transactions above mentioned, was arrested, and, together with his alleged wife, charged with illegal sales of intoxicating liquors, taken into custody and lodged in the county jail. On the morning of that day the house they had occupied on the farm was burned down. Hockman and the woman were convicted, and remained in custody until November 1, 1892. After the destruction of the house, there was left on the place, in a condition of abandonment, a discarded harvesting-machine, a broken plow, a metal cylinder called a feed-cooker, and a frameless grindstone.

On October 21, 1892, Charles E. Thuma bought the land from Daniel Hockman, receiving a warranty deed, in which the consideration was expressed as $ 3200. This consideration was made up of an assumption of the $ 2000 mortgage on the land and the sum of $ 1200, to be paid Daniel Hockman, as evidenced by three notes of $ 400 each. Before buying, Thuma went over the land and also inquired of Mr. Koester whether the title was good, to which question he received an affirmative answer. Thuma occupied the land through a tenant, built a house on it, and made other improvements. In January, 1901, plaintiffs in error took forcible possession of the premises, and two months later brought an action to quiet the title. They were defeated in the court below.

There are many assignments of error, but it is sufficient to discuss only one or two of them. We have,...