Knowles v. Williams

• Decision Date: 09 May 1897
• Docket Number: 9835
• Citation: 48 P. 856,58 Kan. 221
• Parties: HENRY KNOWLES v. HENRY B. WILLIAMS et al
• Court: Kansas Supreme Court

48 P. 856

58 Kan. 221

HENRY KNOWLES v. HENRY B. WILLIAMS et al

No. 9835

Supreme Court of Kansas

May 9, 1897

Decided January, 1897.

Error from Sumner District Court. Hon. James A. Ray, Judge.

This was an action brought by Henry Knowles against Cassander Williams, Henry B. Williams, her husband, and Francis M Williams, her son, to recover a tract of land in Sumner County, consisting of about four hundred acres. Prior to December, 1886, the land was owned by the Williamses, but was heavily incumbered. Foreclosure proceedings had been begun and a judgment of foreclosure had been obtained in one case amounting to over eight thousand dollars. About that time the Williamses concluded that there were valuable deposits of silver and gold in their land, and desired to obtain money for the purpose of mining in the land and to pay off judgments and perfect the title thereto. They entered into an agreement with E. T. Peck and A. C. Emmons for the organization of a mining company. The land was to be conveyed to the mining company, which was stocked in the sum of twenty thousand dollars. One-half the stock was to go to the Williamses and the balance to be distributed among the other members of the corporation. Peck and Emmons were to procure eleven thousand dollars upon two promissory notes executed by the Williamses and secured upon their personal property, consisting of horses, cattle and hogs. Provision was made in the agreement for the sinking of shafts and the testing of the mineral ore. Notes were executed, one for nine thousand dollars and another for three thousand dollars, and James S. Warden undertook to negotiate the same. The mining company was organized and the land in controversy conveyed to the company. Afterward, in January, 1887, the land was sold, in pursuance of an order of sale, to James S. Warden for the sum of eight thousand dollars, and, the sale having been confirmed, on February 4, 1887, the sheriff executed a deed of the land to Warden. Warden was an officer of the First National Bank of Frankfort, Kansas, through which he obtained the money required in this transaction. Money was raised for the purpose of developing the mines and testing the mineral, and some of it used to pay off liens and claims against the Williamses. It was soon discovered that no valuable mineral was in the land, and the mining project was abandoned. Warden took possession of the land and leased it to tenants. On February 24, 1890, Warden and wife executed an instrument of conveyance, transferring the land to the First National Bank of Frankfort, of which the following is a copy:

"This indenture made and entered into by and between James S. Warden of the County of Jackson, State of Missouri, trustee, and Fannie U. Warden, his wife, as parties of the first part, and the First National Bank of Frankfort, Kansas, party of the second part,

"Witnesseth, that whereas, said party of the second part and the Windsor National Bank of Windsor, Vt., were heretofore interested in certain debts due to said banks from Cassander and H. B. Williams, of Sumner County, Kansas, which debts were in part secured upon the real estate hereinafter mentioned and described; and

"Whereas, there were certain prior liens on parts of said lands, secured by mortgages, which said liens said two banks were compelled, in order to secure their debt, to pay off and discharge; and,

"Whereas, a part of said real estate was sold at public auction under one of said prior mortgages to one R. B. Upham, thereby cutting off the right and lien of said two banks to so much of said real estate as was purchased by and conveyed to said Upham; and,

"Whereas, a deed heretofore executed by said parties of the first part to said party of the second part for said lands has been lost or misplaced before the same was recorded in said Sumner County; and,

"Whereas, it is now desired by the parties hereto to place the legal and record title to said lands in the name of said party of the second part, so that it may sell the same and apportion the proceeds thereof to said two banks, according to their respective equitable interests therein:

"Now, therefore, in consideration of the premises and the sum of one dollar to him in hand paid, the receipt of which is hereby acknowledged, the said James S. Warden in discharge of his said trust, his said wife joining him, does hereby grant, bargain and sell, confirm and release unto the said party of the second part, the First National Bank of Frankfort, Kansas, all his right, title and interest of, in and to said lands, conveyed to him as the trustee of said two banks, for their convenience, which said lands are situate in the county of Sumner and in the state of Kansas, and are described as follows: Lots 1 and 2 and the south half of the northeast quarter of section 1, in township 34 south, range 3 west; also the south half of the southwest quarter of section 31, township 33, of range 2 west, and lots 1, 2, 3 and 4, in section 6, township 34 south, range 2 west; containing in all 400 acres more or less.

"To have and to hold the same unto the said the First National Bank of Frankfort, Kansas, and to its successors and assigns forever, for the use of said two banks, as aforesaid, so that neither the said parties of the first part nor anyone claiming by, through or under them shall ever have any right or title to, claim or interest in any of the real estate so above described.

"In witness whereof, said parties of the first part have hereunto set their hands this 24th day of February, 1890.

JAMES S. WARDEN,

FANNY U. WARDEN."

One of the several mortgages upon the land was foreclosed in 1888 and upon an order of sale the land was sold to R. B. Upham for the sum of $...