Kalivoda v. Pugh

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY
• Citation: Kalivoda v. Pugh, 170 Kan. 505, 226 P.2d 857 (Kan. 1951)
• Decision Date: 27 January 1951
• Docket Number: No. 38132,38132
• Parties: KALIVODA v. PUGH et al.

Page 857

226 P.2d 857

170 Kan. 505

KALIVODA v. PUGH et al.

No. 38132.

Supreme Court of Kansas.

Jan. 27, 1951.

Syllabus by the Court.

1. One who sold real property to another and agreed to give a clear and marketable title, and who has executed a deed therefor but withheld delivery pending the outcome of an action to remove a cloud from the title, may maintain an action to quiet title to remove such cloud as against one claiming an interest by reason thereof without joining in the action the prospective purchaser.

2. Where one owns a tract of land, a part of which had once been platted as a town, which had never been incorporated as a city and the plat of which had never been vacated, executes and delivers to another for a valuable consideration a warranty deed for the entire tract, properly described by section, township and range numbers, but which does not specifically describe by clocks and lots the platted portion, the deed conveys all of the landowner's title in and to such platted portion.

3. The result stated in the previous paragraph is not affected by the fact that the platted portion of the land conveyed is still carried upon the tax rolls by lot and block numbers and the grantor of the deed continues to pay the taxes thereon.

N. J. Ward, of Belleville, argued the cause and was on the briefs for appellants.

Fred Emery, of Belleville, argued the cause and was on the briefs for appellee.

HARVEY, Chief Justice.

This was an action to quiet title to certain described real estate in Republic county. The appeal is from an order of the court sustaining plaintiff's motion for judgment on the pleadings.

In the petition the facts are clearly stated in proper sequence, but for our purposes we think we may summarize them as follows: Under date of July 29, 1931, defendants, who were then the owners of the real property, for a valuable consideration, sold and conveyed to plaintiff by warranty deed the following described real property: 'The Southeast Quarter (SE 1/4) and the South Half of the Southwest Quarter (S 1/2 SW 1/4) of Section 35, in Township Two (2) South, of Range One (1) West, excepting therefrom the right of way of the Chicago, Burlington and Quincy Railway Company, as now located across said premises, containing after said exception, 230.25 acres, more or less.'

The deed was filed for record the next day and duly recorded, and plaintiff went into possession thereunder. A copy of the deed was attached to the petition as Exhibit 'A' and made a part thereof.

Plaintiff alleged that in the year 1891 the then owner of the real property caused to be platted of record the town of Haworth, which included that part of the land conveyed by the deed above mentioned lying south of the railroad right of way and east of a north and south line 572 feet west of the southeast corner of Section 35. This contained about eight acres and was described in the plat as Blocks 2, 3, 4 and 5, with streets and alleys adjacent thereto; that the town of Haworth was never incorporated as a city and the townsite never had been formally vacated; that a small village existed on the townsite for a few years, but the same became wholly depopulated, and such buildings and improvements as existed thereon have long since been destroyed or removed, so that the portion of the townsite in Section 35 reverted to its character of unimproved farm land, undistinguishable from the adjacent land described in the deed, and that this situation had existed for more than thirty years. It was alleged that when the deed to plaintiff was recorded the officials having charge of the tax rolls did not properly alter them to reflect the ownership of plaintiff in that portion of the townsite in Section 35, but continued to carry Blocks 2, 3, 4 and 5 on the tax rolls so as to reflect the ownership to be in the defendant, J. A. Pugh, and that he continued to pay the taxes on those blocks through the years 1931 to 1947; that plaintiff did not discover that condition until about a year before this action was brought, when he paid the taxes on the blocks for the years 1948 and 1949. Plaintiff alleged he was ready to do equity and to pay defendants the amount of the taxes which they had paid if the court found it necessary, but alleged that equity should not require such payments by him for the reason that they were made voluntarily by defendants with full knowledge on their part. It was alleged that defendants make some claim to Blocks 2, 3, 4 and 5 in the town of Haworth.

Plaintiff claimed title to all of the property, including Blocks 2, 3, 4 and 5 in the town of Haworth by virtue of the deed, and separately claimed it by adverse possession for more than seventeen years, and appropriate allegations for that claim are made in the petition.

Plaintiff further alleged that he had agreed to sell the south half of the southwest quarter and the south half of the southeast quarter of Section 35 to one Leon Chizek, their present tenant on the property, and to furnish a clear and marketable title thereto, and for that purpose plaintiff and his wife had executed a deed in favor of Chizek, but that the delivery of the deed was being withheld pending the commencement and final conclusion of this action.

Defendants demurred to the petition upon the ground that the court had no jurisdiction of the subject of the action or of the defendants; that plaintiff had no legal capacity to sue or to maintain the action, and that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants. This demurrer was overruled.

Defend...