Mingenback v. Mingenback

• Decision Date: 12 June 1954
• Docket Number: No. 39384,39384
• Citation: 176 Kan. 471,271 P.2d 782
• Parties: MINGENBACK et al. v. MINGENBACK et al.
• Court: Kansas Supreme Court

Page 782

271 P.2d 782

176 Kan. 471

MINGENBACK et al. v. MINGENBACK et al.

No. 39384.

Supreme Court of Kansas.

June 12, 1954.

Syllabus by the Court.

1. This court's Rule 53, G.S.1949, 60-3827, providing, 'In trials before the court, without a jury, where evidence is admitted over proper objections, and not stricken out on timely motion therefor, it shall be presumed that such evidence was considered by the court and entered into its final decision in the case,' has no application in the absence of a timely motion to strike testimony admitted over objection, and under such circumstances there is no presumption the evidence complained of was considered or entered into the final decision of the trial court.

2. 'Discovery of fraud' as the term is used in G.S.1949, 60-306, Third, implies knowledge, and is not satisfied by mere suspicion of wrong. The suspicion must be such as to call for further investigation, but is not of itself a discovery, and where one was informed by a stranger that he did not have title to certain mineral interests, and upon such information made a diligent examination of the records in the register of deeds office, which disclosed that the deed did not contain the mineral reservation, such discovery of fraud dated from the examination of the records.

3. Where the evidence shows the conduct of the defendant was such as to throw plaintiffs off their guard, or to lull them into a sense of security so as to lead them to omit or forego the examination of the records, then the statute begins to run from the date of the actual knowledge of the fraud.

4. Under the provisions of G.S.1949, 60-308, when an action is filed and summons issued, or an affidavit for publication filed within the period of limitation and the plaintiff faithfully, properly and diligently endeavors to procure service, the action is deemed commenced as of the date of the filing of the action, provided service of summons or first publication is actually had within sixty days.

5. If the facts put in issue and established by evidence entitle the party to any relief in the power of the court to give, although not demanded, it is the duty of the court to give it, and its power to do so is not conditioned upon the form of the prayer.

6. Equity will give whatever relief the facts warrant. The distinguishing feature of equity jurisdiction is that it possesses full power to apply settled rules to unusual conditions and to mold its decree so as to do equity between the parties.

7. In the instant case, the general judgment of the trial court reforming the deed determined every controverted question of fact in support of which evidence had been introduced.

J. S. Brollier, Hugoton, argued the cause, and Paul A. Wolf, Hugoton, was with him on the briefs, for appellants.

Wm. I. Robinson, Wichita, argued the cause, and Mark H. Adams, Charles E. Jones, J. Ashford Manka and Clifford L Malone, Wichita, were with him on the briefs, for appellees Maude S. Mingenback, John Joseph Mingenback and Ruth Zimmerman, nee Mingenback.

A. E. Kramer and Bernard E. Nordling, Hugoton, were on the briefs, for appellee Anthony P. Nugent.

WERTZ, Justice.

This was an action to reform a deed on the ground it had been fraudulently altered after its execution and delivery.

The appellees will be hereafter referred to as plaintiffs, and the appellants as defendants.

The action was tried by the court which made detailed findings of fact and conclusions of law. Most of the facts alleged in plaintiffs' petition were admitted by defendants' answer. The admitted facts, findings by the court, and the evidence, so far as material to this appeal, may be summarized as follows:

Plaintiff Maude S. Mingenback is the widow of C. F. Mingenback who died on April 20, 1929, and the other plaintiffs are the children of the marriage of Maude S. Mingenback and C. F. Mingenback. The defendants, except Mary Mingenback and Anthony P. Nugent, are the children of C. F. Mingenback by a former marriage. Mary Mingenback is the wife of Eugene C. Mingenback.

The property in question was conveyed by C. F. Mingenback and Maude S. Mingenback, his wife, to Eugene C. Mingenback, as trustee, by two separate deeds, in the years of 1924 and 1925. The plaintiffs and all defendants except Anthony P. Nugent were beneficiaries of the trust. Eugene C. Mingenback accepted the trust and administered it as trustee until December 16, 1940, when a settlement between the trustee and the beneficiaries was effectuated through a division of the trust properties and the execution of a mutual release by the parties in which they agreed to sign future instruments upon demand of any of the other parties.

Anthony P. Nugent was attorney for the plaintiffs in this settlement, having been employed by them in June, 1939. Prior to the settlement and on March 1, 1940, the trustee conveyed to the plaintiffs jointly an undivided one-third royalty or mineral interest in the property in question, for a term of fifteen years and as long thereafter as oil and gas were being produced or the property was being developed or operated.

After the settlement and on December 31, 1940, plaintiffs executed a mineral deed purporting to convey to Anthony P. Nugent the fee title to 1/15th interest in the minerals in the Morton County land.

Plaintiffs executed seven deeds at the time of the settlement on December 16, 1940. One of these deeds described approximately 3,400 acres of Morton County land and contained no reservation. This is the deed in controversy. When originally prepared, it contained this reservation following the land descriptions: 'Reserving to grantors the one-third (1/3) of the oil, gas and mineral rights now of record in their name, as shown by the instrument recorded March 20, 1940, in Book O. & G. 8, page 539, in the office of the Register of Deeds of Morton County, Kansas.' This clause was clipped off the bottom of the page containing the descriptions which was pasted on the recorded deed.

There is no controversy as to whether this reservation was in the original deed when it was prepared. The only controversy is when the reservation was removed from the deed. The deed was recorded on February 6, 1943. A deed in identical form conveying land in Stevens County contained this reservation when it was executed and delivered by plaintiffs on December 16, 1940, and this deed was recorded on February 18, 1943.

The plaintiff Maude S. Mingenback and the defendant Anthony P. Nugent testified that the original recorded deed to the Morton County land contained the mineral reservation at the time it was executed and delivered. The plaintiffs John J. Mingenback and Ruth Marie Zimmerman testified that they did not remember whether the deed contained the reservation at the time they signed it, but they were informed by Mrs. Mingenback and Mr. Nugent that they were retaining a mineral interest in this land and understood that the deed contained a reservation.

Maude S. Mingenback caused a one-third mineral interest to be listed for taxation in Morton County, to herself, and paid taxes thereon as shown by tax receipt. The defendant Eugene C. Mingenback subsequently wrote to Maude S. Mingenback requesting that she and the other plaintiffs join in the execution of oil and gas leases on the property, which was done.

In June, 1950, Anthony P. Nugent was informed by a representative of Terminal Facilities Company that he (Nugent) did not have record title to any mineral interest in the Morton County land and on the same day he notified Mrs. Mingenback. Maude S. Mingenback was acting as agent for the other plaintiffs at all times material herein. On August 2, 1950, Anthony P. Nugent personally examined the record of this deed in the office of the register of deeds of Morton County and discovered that the record did not show any reservation in the grantors. On August 3, 1950, he told Mrs. Mingenback of the situation with respect to the record of this deed. The original recorded deed was shown to Mr. Nugent on April 12, 1951, by Mr. L. H. Ruppenthal, who was acting as attorney for Mr. Mingenback.

Plaintiffs filed their petition to reform the deed on July 31, 1952. Summonses were issued on the same date for service on the defendant Eugene C. Mingenback individually and as trustee for the other defendants except Mr. Nugent, and the sheriff's return shows service on August 4, 1952. An affidavit for service by publication on the other defendants was filed on July 31, 1952. First publication was printed on August 8, 1952.

The parties stipulated at the trial that there was some production of gas being had from part of the Morton County lands and that no part of the royalty from such production had been paid to any party, and that all of such royalty was being impounded in the hands of the purchasers or lessees pending termination of this action.

At the conclusion of plaintiffs' evidence, the defendants other than Anthony P. Nugent demurred to the evidence of the plaintiffs for the reason that the same did not prove the cause of action purported to be alleged in their petition, and for the further reason that such purported cause of action was conclusively shown to be barred by the statute of limitations by the evidence of the plaintiffs themselves. This demurrer was overruled.

Defendants other than Mr. Nugent readily conceded and admitted that the deed in question contained a reservation following the land descriptions on the typed sheet of paper pasted to the deed at the time the deed was prepared. There is no argument about this fact. The question is--when was the reservation removed. L. H. Ruppenthal testified that he had been a practicing lawyer at McPherson since 1925 and had represented Mr. Mingenback for about twenty years and that he had numerous conferences with Mr. Nugent pertaining to settlement of the trust estate and that the reservation on the deed in question was removed in his office on the evening of ...