Kitchell v. Hodgen

• Decision Date: 03 July 1908
• Docket Number: 15,645
• Citation: 97 P. 369,78 Kan. 551
• Parties: J. W. KITCHELL v. R. T. HODGEN
• Court: Kansas Supreme Court

97 P. 369

78 Kan. 551

J. W. KITCHELL v. R. T. HODGEN

No. 15,645

Supreme Court of Kansas

July 3, 1908

Decided July, 1908.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

STATEMENT.

THE petition in this case alleged a partnership between the plaintiff and others associated with him for the purchase and sale of a tract of real estate on speculation. The title stood in the name of James S. Foote. The firm of Johnston & Blackwelder, real-estate agents, assuming to represent Foote, procured the sale to be made. The title was taken for the partnership in the name of John S. Shelton, as trustee who agreed to act in accordance with the partnership agreement and such instructions as might be given him, and to sell the land and distribute the proceeds among the owners according to their several interests. The partnership agreement provided that the subscribers owned the land in shares proportioned according to the contributions of each one to the purchase-price. Johnston & Blackwelder appeared by the agreement to have advanced $ 4000 toward the purchase-price of $ 24,000. The petition charged that Johnston & Blackwelder owned the land at the time the sale was negotiated; that Foote had no interest in it and only held the title for Johnston & Blackwelder; that the sum of $ 20,000 furnished by plaintiff and others and paid to Johnston & Blackwelder constituted the full purchase-price; that Johnston & Blackwelder contributed nothing, and therefore owned no interest in the property after Foote had conveyed to Shelton; and that the transaction was the result of fraudulent conduct and representations on the part of Johnston & Blackwelder. The prayer of the petition was in part that the interest of the copartners in the land be established, that the land be sold and the proceeds distributed, and for other relief.

J. W Kitchell was made a party defendant. The petition alleged that he claimed an interest in the land by virtue of two deeds from Shelton, each purporting to convey an undivided one-sixth of the property, but it was charged that he had in fact no interest in the land; that the deeds were void as against the plaintiff and his copartners; that they were made without consideration, which fact was shown by the instruments themselves; and that they were made in violation of the trust agreement. The prayer was that the Kitchell deeds be declared void, and that he be excluded from any participation in the proceeds of the sale of the land.

Kitchell answered asserting title under the Shelton deeds, and asking for one-third of the proceeds of the sale of the land if it should be ordered sold. The plaintiff replied by a general denial, and by reasserting the special grounds of invalidity in the Shelton deeds as conveyances set forth in the petition.

Afterward Kitchell filed a supplemental answer setting up a quitclaim deed from Blackwelder and quitclaim deeds from Henry Strother and Robert Bruce, who had been members of the purchasing syndicate, whereby he claimed to be the owner of a third interest in the premises in controversy. The plaintiff replied that such deeds were without consideration moving from Kitchell, were given in fraud of the partnership, and that Blackwelder had no interest in the property and could convey none.

On the trial it sufficiently appeared that one of the Shelton deeds (the other need not be considered here) was given in an attempt to transfer to Kitchell whatever interest Johnston & Blackwelder had in the property by virtue of the contract referred to, which interest was designated as an undivided one-sixth. No consideration passed to Shelton, who merely acted at the request of Blackwelder, the purpose of the transaction being the satisfaction of a judgment which Kitchell held against Johnston & Blackwelder. The quitclaim deed from Blackwelder set up in the supplemental answer was given for the purpose of ratifying and confirming the Shelton deed.

Before the deeds from Shelton to Kitchell were executed, suits in equity had been commenced in the United States circuit court for the district of Kansas by some of the parties to the partnership agreement asking for a rescission of it so far as it related to themselves and Johnston & Blackwelder, and for the restoration of the money they had paid to Johnston & Blackwelder by virtue of it. It was charged that Foote did not own the land, that Johnston & Blackwelder were the owners of it, and that they fraudulently induced the sale of it to the partnership, all substantially as alleged in this case. In the bills of complaint certain interrogatories were propounded to be answered under oath, which Blackwelder did in his...