Kruse v. Conklin
| Decision Date | 07 May 1910 |
| Docket Number | 15,970 |
| Citation | 82 Kan. 358,108 P. 856 |
| Parties | ADOLPH KRUSE, Appellee, v. J. E. CONKLIN, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1910.
Appeal from Kiowa district court; EDWARD H. MADISON, judge pro tem.
STATEMENT.
THIS was an action in ejectment to recover the possession of 160 acres of land in Kiowa county. After issues were joined a jury was waived. The court made findings of fact which are in substance:
(1) C L. Davidson held a mortgage on the land, dated July 2, 1887 payable five years after date.
(2) Soon after the execution of the mortgage the land was abandoned by the owner of the fee.
(3) In 1890 the Fullington Live Stock Company included the land in a large pasture owned by it, in which there were several tracts of land to which it had no title. The company leased the land from Davidson, the owner of the mortgage, and paid rent to him for several years; afterward it purchased the note and mortgage from him and retained possession of the land under the mortgage, paying rent to no one. The mortgage debt has never been paid.
(4) On March 3, 1900, the Fullington Live Stock Company was adjudged a bankrupt, and J. E. Conklin of Wichita became the trustee of the estate and took possession of the property of the bankrupt, including the pasture in which the land in question was located. Afterward the trustee leased the pasture to W G. Fairchild for one year. In April, 1901, some difficulties arose between the trustee and Fairchild and J. E. Conklin, the defendant herein. J. E. Conklin, the trustee, and J. E. Conklin, the defendant, are different persons. The trustee began proceedings in the federal court to oust Fairchild and the defendant from the land. While these proceedings were pending Conklin, the defendant, made an offer to the court to purchase all the interest of the trustee in the lands of the bankrupt for the sum of $ 3000. This offer was accepted by the court and the trustee ordered to convey all the interest of the bankrupt in the lands by a deed, which should be in substance and effect a quitclaim deed. Conklin, the trustee, was not present when the offer was made, nor was he consulted about it or advised of it at the time.
(5) In pursuance of this order W. G. Fairchild, attorney for the defendant, prepared a deed to be executed by the trustee, and included therein the land in question. The trustee afterward executed the deed as prepared by Fairchild, with the description of this land included, and delivered the same to the defendant. The trustee made very little examination of the deed to ascertain its contents.
(6) At the time the trustee qualified he took possession of the note and mortgage which had been purchased by the Fullington Live Stock Company from the mortgagee, and listed the same as personal property, had the same appraised as such, and, in May, 1900, offered the mortgage and note for sale at public auction, in pursuance of the court's order to sell the personal property of the bankrupt. But no sale of the note and mortgage was made, on account of the lack of bidders. At the time of the execution of the deed by the trustee conveying the interest of the bankrupt in the lands to the defendant the note and mortgage were in the possession of the trustee, and no demand of any kind was made on him personally for the delivery of the note and mortgage to the defendant. At the time of the preparation of the deed some conversation occurred between the attorney for the trustee and W. G. Fairchild, in which it was said that the mortgage had been mislaid, could not be found at the time; and it was agreed between the attorneys that the insertion of the description of the land in the deed would convey the title of the trustee.
(7) The defendant has been in actual and exclusive possession of the land under his deed from the trustee from the 22d of April, 1901, until the present time. He has had the same inclosed in a large pasture with other lands, some of which are owned by him and some of which he has leased from the owners. The deed from the trustee was not recorded until the 3d day of December, 1901.
(8) In May, 1901, J. E. Conklin, trustee, being in the possession of the note and mortgage, assigned and delivered the same to one Cyrus Ritchie. There is no evidence as to the actual consideration for the assignment or any evidence showing whether Ritchie had actual notice of the trustee's deed to the defendant. Soon after the assignment to him of the note and mortgage Ritchie assigned and delivered the same to M. P. Hocking, and there is no evidence as to the actual consideration paid by Hocking or whether he had actual notice of the trustee's deed. In July, 1901, Hocking brought an action to foreclose the mortgage against the Fullington Live Stock Company and the original mortgagors and the former owner of the fee. He obtained a judgment of foreclosure, and purchased the land at sheriff's sale September 20, 1902. Whatever title Hocking took by the sheriff's deed now belongs to the plaintiff, Kruse.
As conclusions of law the court found:
In accordance with these findings judgment was rendered for the plaintiff, and the defendant appeals.
Judgment reversed.
SYLLABUS BY THE COURT.
1. UNRECORDED CONVEYANCE -- Rights of Subsequent Purchasers. An unrecorded conveyance of real estate is good except as against a person who purchases without notice thereof and for a valuable consideration.
2. UNRECORDED CONVEYANCE -- Payment of Valuable Consideration by Second Purchaser -- Burden of Proof. Where, after the execution of a conveyance which is not recorded, the grantor conveys the same property to another, the latter, in order to be protected by the recording act, must assume the burden of proving that he was a purchaser for a valuable consideration. Recitals in the conveyance itself of the payment of consideration are no evidence thereof as against strangers.
3. UNRECORDED CONVEYANCE -- Presumption that Second Purchaser Acted in Good Faith and without Notice. As soon as it appears that a valuable consideration has been paid the presumption arises that the purchaser acted in good faith and without notice of the rights of those who claim under the unrecorded deed. Until...
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