Moore v. Petroleum Building, Inc.

• Decision Date: 06 December 1947
• Docket Number: 36944.
• Citation: 187 P.2d 371,164 Kan. 102
• Parties: MOORE v. RETROLEUM BUILDING, Inc., et al.
• Court: Kansas Supreme Court

187 P.2d 371

164 Kan. 102

MOORE v. RETROLEUM BUILDING, Inc., et al.

No. 36944.

Supreme Court of Kansas

December 6, 1947

Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.

Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.

Action by Russell Moore against Petroleum Building, Inc., and another to enjoin the delivery of deeds to the named defendant and to compel delivery of the deeds to the plaintiff. Judgment for the defendants and the plaintiff appeals.

Judgment affirmed.

Syllabus by the Court.

The record examined in an action to enjoin delivery of deeds by an escrow holder to third persons and to compel their delivery to plaintiff, and held, that the trial court did not err in sustaining defendants' demurrer to plaintiff's petition and in rendering judgment for the defendants.

Austin M. Cowan, of Wichita (W. A. Kahrs and Robert H. Nelson, both of Wichita, on the brief), for appellant.

George Siefkin, of Wichita (Paul H. White, Robert C. Foulston George B. Powers, Samuel E. Bartlett, Andrew F. Schoeppel Carl T. Smith, John F. Eberhardt, Stuart R. Carter and Thomas E. Woods, all of Wichita, on the briefs), for appellees.

THIELE Justice.

This was an action to enjoin the delivery of deeds hereafter mentioned and to compel delivery of the deeds to the plaintiff. The trial court sustained defendants' demurrer to the petition and rendered judgment for the defendants and plaintiff appeals to this court.

The present action is one of a series growing out of the leasing of real estate, the erection of a building which was mortgaged, foreclosure of the mortgage and related matters, and opinions determining previous appeals are reported in Wheeler Kelly Hagny Trust Co. v. Ellis & Singleton Building Co. (Russell Moore, Intervenor), 159 Kan. 233, 153 P.2d 930, and same title, 160 Kan. 605, 164 P.2d 143. Hereafter in referring to these opinions we shall note only the volume and page.

Omitting formal allegations the gist of the allegations of the present petition is that defendant Petroleum Building, Inc., is lessee and operator of the Petroleum Building built upon leasehold estates on four described lots on Broadway Avenue in Wichita, and that defendant Fourth National Bank in Wichita, hereafter called Bank, is a national banking institution and the escrow agent referred to in leases next mentioned; that named persons executed long time leases to the Ellis & Singleton Building Company, hereafter called Building Company, copies being attached or referred to and later mentioned; that under the terms of the leases, deeds were to be executed and placed in escrow with Bank to be delivered upon the termination of the leases provided the leases were strictly complied with in all of their terms, time and strict performance being the essence of the agreement. In a summary way it may be said the lessors executed deeds to the real estate to be delivered to Bank to be held fifty years, the term of the leases, and on January 1, 1979, in the event all the terms and conditions of the leases had been complied with by the lessees, Bank was to deliver the deeds.

It is further alleged in the petition that Building Company, predecessor in interest of Petroleum Building, Inc., defaulted in the terms of the lease agreements by failing on June 21, 1943, to pay the last half of the 1942 taxes, and by failing on July 1, August 1, and September 1, 1943, to pay rents due; that on September 13, 1943, the Wheeler Kelly Hagny Trust Company as trustee under certain mortgages and deeds of trust executed by Building Company to secure bonds, filed suit to foreclose and to have a receiver appointed because of the defaults of Building Company; and on August 5, 1943, the original lessors served sixty-day notices of violation of the covenants of the lease agreements upon Building Company and the Wheeler Kelly Hagny Trust Company as trustee, and that on August 25, 1943, the original lessors assigned and transferred all their interests under the leases to Russell Moore, who subsequently intervened in the above-mentioned foreclosure suit. Moore's intervening petition set up the execution of the original leases made March 1, 1929, with Building Company as lessee and its obligation to pay rents and taxes; that it had failed in stated particulars; that under the leases the lessor might give sixty-days' notice of failure and if the default was not cured within that period the lease became null and void and the lessor was entitled to the immediate possession of the real estate including the improvements thereon; that such sixty-days' notices were given not only to the lessees but also to the Wheeler Kelly Hagny Trust Company and to Bank; that Moore, by assignment and conveyance was the owner of all right, title, interest, remedy and claim of the original lessors who had fully performed under the leases, and was entitled to immediate possession of the premises.

It is further alleged that upon trial of the above action the trial court found that Building Company was in default and had not complied with the terms of the leases and that Moore was entitled to possession, 'but, as a matter of right and fairness, the Court would allow the said The Ellis & Singleton Building Company and the Trustee thirty days from May 18, 1944, to make all back payments due, including taxes and costs, and upon doing so to have the leases reinstated'; that the trial court, in deciding the case, denied Moore the right to recover deferred rentals after tender and payment into court by Building Company within the thirty-day period of the amount specified in the judgment. Then follows allegations of further proceedings resulting in an appeal to the supreme court; that after that appeal was taken, the real estate was, on order of sale, sold to Aladdin Petroleum Corporation, which obtained its title with knowledge of the pendency of the action, and thereafter that company transferred its interest to Petroleum Building, Inc., which also knew that Moore had appealed to the supreme court.

It is further alleged that the appeal was submitted to the supreme court which filed its opinion reversing the trial court holding that Moore was entitled to the deferred rents and that the alleged reinstatement did not have the effect of curing the defaults, and directing judgment for Moore for the deferred rents, 159 Kan. 233, 153 P.2d 930; that subsequently the former judgment of the trial court was set aside in the trial court and judgment was entered in his favor and he was paid the amount of the judgment. Reference is then made to a second appeal in which Moore was ultimately held not entitled to certain interest. See 160 Kan. 605, 164 P.2d 143.

It is further alleged that Petroleum Building, Inc., acquired its interest during the pendency of the litigation and is bound by the judgments therein; that by the suits and judgments and the opinion of the supreme court it has been conclusively determined that the lessee under the lease agreements had not complied with the terms, conditions and covenants thereof and therefore the deeds referred to in the lease agreements cannot ever be delivered by the escrow agent to the lessee or its assigns; that Bank refuses to deliver the deeds to the plaintiff as successor in interest to the original lessors but is threatening to and will, unless enjoined, deliver the deeds on January 1, 1979, to the assignee of the lessee; that plaintiff has made demand upon Bank to turn over and return the deeds to him or to the original lessors, but that demand has been refused.

By express inclusion plaintiff made a part of his petition the entire record in the foreclosure action commenced on September 13, 1943, by the Wheeler Kelly Hagny Trust Company against Building Company, and in which he intervened, as the same was abstracted and presented to this court, as well as the opinion of this court filed December 8 1945, and reported in 159 Kan. 233, 153 P.2d 930. In that opinion may be found a more complete statement of facts than we have here set forth and...