Moffett v. Moffett

• Decision Date: 08 November 1930
• Docket Number: 29,495
• Citation: 131 Kan. 546,292 P. 942
• Parties: HELEN MOFFETT, Appellee, v. T. S. MOFFETT et al., Defendants; T. S. MOFFETT and ETHEL ZOMBRO, Appellants
• Court: Kansas Supreme Court

292 P. 942

131 Kan. 546

HELEN MOFFETT, Appellee, v. T. S. MOFFETT et al., Defendants;

T. S. MOFFETT and ETHEL ZOMBRO, Appellants

No. 29,495

Supreme Court of Kansas

November 8, 1930

Decided July, 1930.

Appeal from Comanche district court; KARL MILLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Sufficiency as Against Objection to Introduction of Evidence. Where a petition states a cause of action and an answer and reply have been filed and in neither the petition nor the reply is any fact alleged which would defeat the plaintiff's right to recover, objection to the introduction of evidence on behalf of the plaintiff is properly overruled.

2. QUIETING TITLE--Limitations--Possession of Plaintiff. Neither the petition nor the evidence showed that the plaintiff's cause of action was barred by the statute of limitations or by laches.

3. SAME--Sufficiency of Evidence. The evidence was sufficient to entitle the plaintiff to the relief prayed for and was sufficient to sustain each of the findings of fact made by the court, which evidence and findings justified the judgment that was rendered.

4. WILLS -- Devise to "My Brothers and Sisters" Construed -- Effect of Prior Death. Under the law of this state a devise of real property to the brothers and sisters of the testator, one of whom was dead at the time the will was made, does not pass any title to the dead brother or sister, nor to his or her surviving child or children.

Jay Botts, of Coldwater, A. E. Watson and Martin J O'Donnell, both of Kansas City, Mo., for appellant T. S. Moffett; Glen A. Wisdom, of Kansas City, Mo., for appellant Ethel Zombro.

John W. Davis, Russell L. Hazzard, both of Dodge City, and Orlin A. Weede, of Kansas City, Mo., for appellee Helen Moffett; Henry M. Beardsley and George D. Beardsley, both of Kansas City, Mo., for appellees T. S. Moffett, R. J. Moffett and Joseph W. Moffett.

Marshall J. Marshall, Dawson and Harvey, JJ., dissent from the fourth paragraph of the syllabus and the corresponding portion of the opinion.

OPINION

MARSHALL, J.:

The plaintiff, claiming to be the owner of and in possession of the undivided one-half of certain real property in Kansas, brought this action to quiet her title thereto and to procure the correction of a deed purporting to convey the real property to John Moffett and T. S. Moffett. T. S. Moffett filed an answer in which he claimed to own an undivided one-half of the real property adverse to the plaintiff and asked that he be decreed to be the owner of the undivided one-half thereof. Ethel Zombro and Thomas D. Zombro filed an answer in which Ethel Zombro claimed an undivided one-sixth of an undivided one-half of the real property described in plaintiff's petition. The interests of the plaintiff Helen Moffett and of the defendant T. S. Moffett are antagonistic to each other. There is no antagonism between Helen Moffett and the other defendants in this action. The interest of Ethel Zombro is antagonistic to the interest of T. S. Moffett, R. J. Moffett, Joseph W. Moffett, Jennie M. Lynn and Annie McKee.

The action was tried without a jury. The court made findings of fact and conclusions of law, as follows:

"1. Prior to July, 1920, L. B. Andrews, J. C. Lewis, John Moffett and T. S. Moffett owned 10,655 acres of land in Comanche county, Kansas, each owning an undivided one-fourth interest in said land.

"2. The record title to one section of said land was in J. C. Lewis: the record title to the balance of said land was in L. B. Andrews.

"3. In July, 1920, all of said land was amicably partitioned, Lewis and wife and Andrews and wife executing and delivering quitclaim deeds for the land each party was to receive in the division.

"4. In the partition John Moffett received the land involved in this suit, to wit:

Sec.

Twp.

Rng.

SW 1/4

3

34

19

SE 1/4

4

34

19

All

36

34

19

All

33

33

19

W 1/2 and 15 a. in SW 1/4 of SE 1/4

26

33

19

N 1/2

35

33

19

and in addition thereto eighty acres known as the Guss land and described as: East half of the southwest quarter of section 35, township 33, range 19.

"5. The partition deeds from Andrews and Lewis to John Moffett were received by him shortly after their execution, and as late as September, 1920, were in the filing cabinet in the Moffett Brothers office in Kansas City, Mo. After the death of John Moffett in 1927, said deeds were found in John Moffett's box in the Interstate Bank at Kansas City, Mo. The key to said box was in Moffett Brothers' office and all employees had access to said key. Mrs. Louise McGew Moffett had nothing to do with the Moffett office and knew nothing about the files in said office prior to the latter part of January, 1923.

"6. At the time of the delivery of the Lewis and Andrews deeds to John Moffett, the sole grantee in said deeds was John Moffett. When said deeds were recorded in Comanche county, Kansas, on the 18th day of February, 1921, the words, '& T. S. Moffett' had been inserted in the grantee clause of said deeds following the name of John Moffett, as grantee. Said words '& T. S. Moffett' were typewritten with different ribbon than the body of said deeds, and the alterations were plainly visible.

"7. Neither Lewis nor Andrews inserted the words '& T. S. Moffett' in said deeds, nor did they authorize any such insertion to be made.

"8. There is no evidence that John Moffett inserted the words '& T. S. Moffett' in said deeds, or that he gave authority to anyone so to do. The evidence fails to disclose who made the alterations.

"9. Check in payment of the recording fees of the Lewis and Andrews deeds was signed by Moffett Brothers by John Moffett and the deeds, after being recorded, were returned to 'Moffett & Andrews.'

"10. After the partition of July, 1920, John Moffett and T. S. Moffett operated the lands involved in this suit and the lands received by T. S. Moffett in the division of 1920, together with other ranches owned by them as partners.

"11. In the partnership operations, T. S. Moffett devoted most of his time to the management of the western ranches, including the lands in Comanche county, and John Moffett devoted most of his time to the management of the Birmingham ranch and running the Kansas City office.

"12. On February 8, 1923, John Moffett and T. S. Moffett entered into a partnership agreement which recited: That they were operating the Comanche county, Kansas, lands received by T. S. Moffett and John Moffett in the division of July, 1920, as partners; that they had mortgaged certain parts of the Comanche ranch, part of the lands owned by John Moffett and part by T. S. Moffett, 'not in equal acreage or amounts and the proceeds are being used in the joint account'; and provided that said loans should be paid out of joint funds and that John Moffett and T. S. Moffett should each be liable for an equal one-half of the amount due on said mortgages regardless of the ownership of the lands mortgaged. Said contract also recited that permanent improvements had been erected on the lands of John Moffett and T. S. Moffett without regard to the ownership of said lands, and provided for the division of said improvements at the termination of the partnership.

"13. Subsequent to the division of 1920 John Moffett and T. S. Moffett borrowed money from the Warren Mortgage Company to be used in conducting their partnership business, and secured said loans by executing mortgages on the Comanche county lands and other lands. These loans were paid out of partnership funds. In November, 1922, John Moffett and T. S. Moffett, and their wives, executed two mortgages to the Warren Mortgage Company covering a portion of the lands received by John Moffett in the division of 1920, and then standing in the name of John Moffett and T. S. Moffett by virtue of the deeds recorded February 18, 1921, as mentioned in finding No. 6. These mortgages were also paid out of partnership funds.

"14. There was no oral agreement between John Moffett and T. S. Moffett that John Moffett would give T. S. Moffett one-half of his Comanche county land.

"15. T. S. Moffett has not changed his position or been injured by reason of any representations or acts of John Moffett or the plaintiff.

"16. In February, 1921, John Moffett sold to Mrs. Oliver Guss eighty acres of the land which he had received in the friendly partition. On March 18, 1921, T. S. Moffett and wife executed to John Moffett a quitclaim deed covering said eighty acres, which deed recited that it was given without consideration for the purpose of correcting title.

"17. T. S. Moffett stated to Mrs. Guss when she was in the office at Kansas City in September, 1920, that this eighty acres of land belonged to John Moffett.

"18. Following the friendly partition of July, 1920, T. S. Moffett secured insurance on the improvements on some of the land involved in this suit, in the name of John Moffett. On June 1, 1927, one of these policies was renewed in the name of John Moffett and T. S. Moffett.

"19. John Moffett and plaintiff herein were married on February 22, 1921, and the marriage relation continued to the date of John Moffett's death, to wit: August 23, 1927.

"20. The will of John Moffett was duly probated in Comanche county, Kansas, and his widow, plaintiff herein, filed her election to take under the law and not under said will.

"21. The residence of John Moffett for the ten years immediately preceding his death, August 23, 1927, was Kansas City, Mo., and the residence of T. S. Moffett for the ten years last past has been Kansas City, Mo.

"22. That this action was commenced on the 14th day of July, 1928.

"23. That the defendants, T. S. Moffett, Jennie M. Lynn, Annie McKee, R. J. Moffett and Joseph W. Moffett, are devisees...