"The
plaintiff states that on the first day of January, 1880, she
became, by a conveyance thereof, of that date, in writing,
the owner in fee simple of the following-described real
estate, situated in the county of Cowley, state of Kansas, to
wit, lot numbered eight, in block numbered one hundred and
sixty-seven, in the city of Winfield, and ever since has been
and now is the owner in fee simple of said real estate, a
true copy of which said conveyance is hereto annexed, marked
'Exhibit A,' and made a part of this petition; that
on the 26th day of January, 1880, she entered upon and took
actual possession of said real estate, and thence hitherto
has continuously resided thereon, and is now residing
thereon, and is now and ever since the said 26th day of
January, 1880, has been in the actual and exclusive
possession, and actual and open occupancy of said premises as
a place of residence; that on the 26th day of January, 1880,
the plaintiff being then desirous of conveying said real
estate to one Martha E. McNeil, employed the defendant,
Charles H. Payson, who then and there represented himself to
the plaintiff to be an attorney at law, and a competent and
practical conveyancer, to draw a deed of conveyance conveying
said real estate from the plaintiff to the said Martha E.
McNeil; and on said date the said Payson, in pursuance of
said employment, made out and submitted to the plaintiff for
examination and approval a deed of general warranty, which
said instrument by its terms purported to be and was in fact
a conveyance of the said real estate from the plaintiff to
the said Martha E. McNeil; that plaintiff expressed to said
Payson her satisfaction with said instrument, and then at his
request accompanied him to the office of Henry E. Asp, a
notary public within and for said county of Cowley, for the
purpose of signing said instrument and acknowledging the
execution of the same before said Henry E. Asp, as such
notary public; that upon arriving at the office of said
notary public, the said Payson produced an instrument in
writing which he stated to plaintiff was the conveyance
aforesaid, and requested her to sign her name thereto; that,
relying upon the integrity and good faith of the said Payson,
and believing the instrument then by him produced for her
signature to be the identical instrument which he had been by
her employed to prepare, and had prepared and submitted to
her as aforesaid, for the conveyance by her of said real
estate to the said Martha E. McNeil as aforesaid, she affixed
her signature thereto, in the presence of said notary,
without any examination thereof, and then and there, to and
before said notary public, duly acknowledged the execution of
said instrument, and delivered the same to the said Payson to
be by him for her filed for record in the office of the
register of deeds of said county of Cowley, without, after
having so signed said instrument, made any examination
thereof previous to having acknowledged the execution of the
same, and so delivering the same to said Payson, but relied
throughout upon the good faith and integrity of the said
Payson, and believed at the time she signed said instrument,
and acknowledged the execution thereof, and delivered said
instrument to said Payson to be by him filed for record, that
said instrument was the identical conveyance which he had
been employed to prepare, and had prepared and submitted to
her for examination and approval as aforesaid.
"But
the plaintiff avers that the said instrument which the said
Payson procured her to sign and acknowledge before the said
Henry E. Asp, notary public, as aforesaid, on the 26th day of
January, 1880, as aforesaid, was not and did not purport to
be the instrument that the said Payson then and there stated
it to be as aforesaid, and that this plaintiff then and there
believed it to be as aforesaid, but on the contrary was in
terms a deed of general warranty from the plaintiff to the
said Payson of said real estate, a true copy of which said
instrument is hereto annexed, marked 'Exhibit B,' and
made a part of this petition.
"And
the plaintiff avers that in and about his procurement of her
signature and acknowledgment to and of the said instrument as
aforesaid, the said defendant Charles H. Payson falsely and
fraudulently made to her the statements and representations
as to the character of said instrument whereby he procured
her to sign and acknowledge the same as aforesaid, he then
and there well knowing them to be false and fraudulent, for
the purpose and with the intent of thereby cheating and
defrauding her of all and singular her title and interest in
and to the real estate aforesaid, to his own benefit, and in
violation and disregard of her rights and his duty in the
premises; and that she has never received any consideration
of any kind or character for said pretended conveyance of
said real estate to the said Payson, and has never, in any
manner, at any time assented thereto, and did not discover
the aforesaid fraud of the said Payson, or have any knowledge
or intimation thereof, until the 23d day of February, 1880;
that on the 27th day of January, 1880, the said Payson filed
said pretended deed for record in the office of the register
of deeds of the said county of Cowley, and procured the same
to be therein duly recorded in book P of deeds, at page 85,
where the same now appears in apparent force and effect; that
on the 27th day of January, 1880, the said Payson executed,
acknowledged and delivered to the defendant, James Jordan, an
instrument in writing of that date, purporting upon its face
to be a mortgage from said Payson to said Jordan, of and upon
said real estate, to secure the payment by the former to the
latter of the sum of four hundred and eighty dollars, one
year thereafter, with interest thereon at the rate of twelve
per cent. per annum, from the said 27th day of January, 1880,
until paid, which said pretended mortgage was filed for
record in the office of the register of deeds of the said
county of Cowley, on the 27th day of January, 1880, and duly
recorded therein in book N of mortgages, at page 550, and now
remains so of record, wholly unsatisfied and of apparent
legal force and effect; that the plaintiff never in any
manner, at any time, assented to the execution and delivery
of said supposed mortgage by the said Payson to the said
Jordan, and never discovered that the same had been done, or
had any knowledge or intimation thereof, until the 23d day of
February, 1880, a true copy of which said supposed mortgage
is hereto annexed, marked 'Exhibit C,' and made a
part of this petition; that on the 2d day of February, 1880,
the said Payson executed, acknowledged and delivered to the
defendant George H. Buckman, under the designation of G. H.
Buckman, a certain instrument in writing, purporting upon its
face to be a deed of general warranty of' and to said
real estate, from the said Charles H. Payson to the said
George H. Buckman, under the name of G. H. Buckman as
aforesaid, a true copy of which said pretended deed is hereto
annexed, marked 'Exhibit D,' and made a part of this
petition; that said last-mentioned supposed deed was filed
for record in the office of the register of deeds of said
county of Cowley on the 2d day of February, 1880, and duly
recorded therein in book P of deeds, at page 106, where the
same now remains of record, in apparent legal force and
effect; that the plaintiff never in any manner assented to
the execution and delivery of said pretended deed by the said
Payson to the said Buckman, and never discovered that the
same had been done, or had any knowledge or intimation
thereof, until the 23d day of February, 1880.
"Wherefore,
the plaintiff demands judgment against the said defendants,
and against each of them, that the said supposed deed from
herself to the defendant Charles H. Payson be declared void
from the beginning, and held for naught; that the said
supposed mortgage from the said Payson to the said Jordan be
canceled, set aside, and held for naught; that said pretended
deed from the said Payson to the said Buckman be cancelled,
set aside, and held for naught; that her title to said real
estate be cleared from all cloud cast upon it by said several
instruments, or either of them; that she recover her costs
herein against the said defendants; and that she may have
such relief in the premises as in equity the court may deem
her entitled to."
