Lawrence Building & Loan Ass'n, Inc. v. Taylor

• Decision Date: 09 July 1938
• Docket Number: 33914.
• Citation: 148 Kan. 331,81 P.2d 15
• Parties: LAWRENCE BUILDING & LOAN ASS'N, Inc., v. TAYLOR et al.
• Court: Kansas Supreme Court

81 P.2d 15

148 Kan. 331

LAWRENCE BUILDING & LOAN ASS'N, Inc., v. TAYLOR et al.

No. 33914.

Supreme Court of Kansas

July 9, 1938

Syllabus by the Court.

An action to quiet title, wherein it was agreed that each party had an undivided half interest in realty in question, and wherein there was no dispute as to actual possession thereof but only as to the right of possession, was an "equitable action," and court had right to determine without a jury the equitable interests and rights of the parties. Gen.St.1935, 60-2101 to 60-2114, 60-2903.

In action to quiet title, wherein defendant filed an answer alleging ownership of an undivided one-half interest in realty in question, a reply alleging ground for partition and requesting partition, if defendant was found to have an undivided one-half interest in the realty in question, was not a departure from the allegations of the petition and did not change it from an equitable action, so as to entitle either party to a jury. Gen.St.1935, 60-2101 to 60-2114 60-2903.

1. In an action to quiet title where there is no controversy as to each party having an undivided one-half interest in the land in question and there is no dispute as to the actual possession thereof but only as to the right of possession, it is held that it is an equitable case and the court could determine from the pleadings and evidence the specific interests of the two parties, and it had full power to frame its decree to meet the exigencies of the situation and to reach the ends of justice (following, Banner v Welch, 115 Kan. 868, 225 P. 98, and Walker v Rooney, 135 Kan. 158, 9 P.2d 973).

2. Under the statement of the pleadings and facts as made in the first paragraph of this syllabus, it is held that a reply alleging grounds for a partition and praying in the alternative therefor is not a departure in pleading, and it is further held under such pleadings and circumstances that neither party is entitled to demand a jury.

Appeal from District Court, Douglas County; Hugh Means, Judge.

Action to quiet title by the Lawrence Building & Loan Association, Incorporated, against Albert B. Taylor and others. From a judgment in favor of the plaintiff, the named defendant appeals.

Judgment affirmed.

Forrest A. Jackson, of Lawrence, for appellant.

C. C. Stewart and Olin K. Petefish, both of Lawrence, for appellee.

HUTCHISON Justice.

This was an action against several defendants to quiet title to a certain tract of land alleged to be owned by the plaintiff, and the petition further alleged that William Taylor, one of the defendants, claimed some right, title or interest in a certain part of said land described as a strip three rods wide, but that he had not been in possession of the same until a few weeks prior to the filing of the petition, and that he and his son, Albert B. Taylor, were forcibly holding possession of the entire tract for which wrongful possession the plaintiff claimed damages, and also prayed for possession and that plaintiff's title be quieted.

The defendant, William Taylor, filed an answer in the form of a general denial except that he alleged ownership of an undivided one-half interest in the three-rod strip described in the petition, and that he was entitled to possession of the same and prayed for a judgment quieting his title thereto. To this answer the plaintiff replied admitting the execution of the deed to William Taylor, which conveyed an undivided one-half interest in the three-rod strip, but denying the defendants' possession and claim of ownership of said strip, alleging that the only possession said defendant ever had thereof was jointly with the plaintiff and its predecessor in title, Albert B. Taylor; that the entire tract, including the three-rod strip, had been in the possession of Albert B. Taylor and was claimed to be owned by him who, with the knowledge of defendant William Taylor, mortgaged the entire tract including the three-rod strip as the owner thereof to the plaintiff association, and with the borrowed money constructed a house protruding over on the three-rod strip about four feet and erected certain outbuildings entirely upon the three-rod strip; that the mortgage becoming in default was foreclosed and the entire property was purchased by the plaintiff at sheriff's sale.

The reply concluded with a prayer for relief in three ways: (1) By quieting title in plaintiff; (2) if William Taylor is found to have an undivided one-half interest in this three-rod strip, that the court determine the value of his interest and direct him to convey such interest to plaintiff upon being paid such amount; and (3) that the court determine the value of the land and the improvements and that the land be partitioned. The defendant, William Taylor, moved the court to strike out the second and third prayer of the reply because of plaintiff adopting new and different basis for relief, which motion was overruled.

Plaintiff asked for the appointment of a receiver to look after the possession and rents and profits of the entire tract during the time of the litigation. A receiver was appointed and he with the approval of the court rented the entire property at a monthly rental, which was later divided by order of the court.

The court overruled the request of William Taylor for a trial by jury.

The only land involved in the case, as far as this appeal is concerned, is the three-rod strip, and William Taylor is the only defendant whose interests are here for consideration on this appeal.

The attorney for plaintiff made an opening statement to the court, which included the following sentence:

"Plaintiff is willing to concede that William Taylor has been the owner of an undivided one-half interest in the 3-rod strip since 1914, and that he is the owner with the plaintiff."

At the close of the opening statement by the plaintiff's attorney defendant, William Taylor, moved for judgment for him on the opening statement, which motion was overruled. In so ruling the court made the following remark:

"I think, under the statement and under the pleadings, that the Building and Loan Association is the owner of an undivided one-half of this three-rod strip that William Taylor is the owner of the undivided one-half of the three-rod strip. So you can start at that point."

The plaintiff introduced evidence as to value of the three-rod strip and the value of the improvements thereon, including the four-foot protrusion of the house and bay window across the east line of the strip and also about the length of the strip being 102 rods extending from the street on the north near the house to the river on the south, and the difficulty in making an equitable division thereof. At the close of the testimony of the plaintiff the defendant demurred thereto, which demurrer was overruled. The defendant stood on his demurrer and offered no evidence, and the court rendered judgment for plaintiff, finding that --

"*** the plaintiff and the defendant, William Taylor, are now each the owner of an undivided one-half interest in and to said three-rod strip, which land, with the improvements thereon, now have a value of $400.00, it being considered, however, that the small part of the residence mentioned which extends over upon said three-rod strip does not actually add anything to the value thereof."

And the court therefore ordered and decreed that the plaintiff pay into court for the benefit of William Taylor the sum of $200, and that upon its paying such sum into court its title in and to the three-rod strip be quieted against the defendant, William Taylor, and made further orders about failure to convey and enjoining and restraining defendant and as to costs, from which judgment the defendant, William Taylor appealed after the overruling of his motion for a new trial. During the progress of the trial the plaintiff dismissed its action against the two Taylors for damages on account of forcibly withholding possession of the property.

The appellant presents its views of the errors assigned and argues them under three subdivisions: First, in an action to quiet title and recover possession of real estate where the plaintiff and defendant are each the owners of an undivided interest in the property, does the...