Palmer v. Land & Power Co.

• Decision Date: 26 January 1952
• Docket Number: No. 38424,38424
• Citation: 172 Kan. 231,239 P.2d 960
• Parties: PALMER v. LAND & POWER CO. et al.
• Court: Kansas Supreme Court

Page 960

239 P.2d 960

172 Kan. 231

PALMER v. LAND & POWER CO. et al.

No. 38424.

Supreme Court of Kansas.

Jan. 26, 1952.

Syllabus by the Court.

1. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between direct and cross examination and, if so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled.

2. There is a presumption that when a deed is prepared, executed and delivered by the grantors and accepted by the grantees as performance of a contract to convey, the contract is merged in the deed.

W. R. Martin, Wichita, argued the cause, and George B. Collins, C. L. Williams, Oliver H. Hughes, and K. W. Pringle, Jr., Wichita, were with him on the briefs for appellant.

Kirke W. Dale, Arkansas City, argued the cause, and Donald Hickman, Arkansas City, was with him on the briefs for appellees.

WERTZ, Justice.

This is an appeal from an order of the trial court sustaining a demurrer to plaintiff's evidence on two causes of action brought for slander of title and to quiet title in plaintiff. For purposes of clarity appellant, Anna M. Palmer, will be referred to as plaintiff and appellees, the Land and Power Company as defendant company and A. L. Newman as defendant Newman.

Plaintiff's amended petition in pertinent part alleged her residence, that defendant company is a corporation organized and existing in this state and that defendant Newman is a resident of the state and is secretary-treasurer of the corporation; that plaintiff is the owner of the property in question; that on September 28, 1946, plaintiff and her husband entered into a written contract with defendant company for purchase of the premises for the sum of $7,000, $1,500 to be paid at the time of signing the contract and the sum of $500 on November 1, 1947, and each year thereafter on the unpaid balance with interest, with the right to pay any part or all of the principal sum at any time before due; upon full payment of the contract, defendant company was to deliver to plaintiff and her husband a warranty deed to the premises reserving to defendant company for a period of ten years an undivided one-half interest in the minerals under the premises to be conveyed; that on August 6, 1947, plaintiff's husband entered into an oral contract with defendant company through its agent and secretary-treasurer, defendant Newman, wherein it was agreed that in consideration of full payment of the purchase price then outstanding on the contract, defendant company would convey to plaintiff and her husband the premises in question free and clear of any reservation of mineral rights described in the contract of purchase referred to; that on the same day pursuant to said oral contract, plaintiff's husband paid to defendant Newman as agent and secretary-treasurer of defendant company the full balance of purchase price then outstanding, to wit, $5,500, and defendant company through its agent Newman executed and delivered to plaintiff and her husband a joint tenancy warranty deed, a copy of which was attached, conveying the land in question free and clear of encumbrances or reservations; that plaintiff's husband died on November 6, 1947; that about December 15, 1948, plaintiff discovered an error in the description set forth in the deed and through her attorney George Templar, orally notified defendants of said misdescription and made a demand upon the defendants to correct the error; on January 7, 1949, the defendant company executed and placed on record in Cowley County, Kansas, a second general warranty deed, a copy of which was set forth, purporting to grant and convey the premises described, but reserving to the defendant company for a period of ten years from September 28, 1946, a one-half interest in the minerals under the premises conveyed, and that said defendants knowingly, willfully, maliciously, and without probable cause executed and placed on record said second general warranty deed in the office of the Register of Deeds of Cowley County, well knowing the reservations granted in the deed were a false and fraudulent claim and an encumbrance upon the premises owned by plaintiff as described; that said deed was recorded by defendants without the knowledge or consent of plaintiff; that plaintiff had refused to accept delivery of said deed and had so notified defendants in writing by letter dated October 12, 1949 (a copy of said letter being attached); and that by reason of the foregoing facts, plaintiff's title to the premises described has been slandered and defamed by defendants and each of them; plaintiff further alleged that she is entitled to actual damages and punitive damages.

Plaintiff for her second cause of action alleged she is the owner of the described property and in actual possession of the premises and more particularly of all the oil, gas and minerals thereunder; that defendant company claims an undivided interest for a period of ten years from September 28, 1946, in the minerals under the above described premises, but that such claim is false and fraudulent, inferior to and subject to the title of plaintiff.

A demand was made upon the defendants to cease and desist from claiming said interest and to release same of record, but defendants have failed and refused to withdraw their claim or release the same of record. Plaintiff asked that title be quieted in her and defendants be barred from claiming any right, title or interest therein.

Defendants in their respective answers admitted the relationship and residence of the parties, the execution of the contract of purchase, the first warranty deed conveying the property without reservation or exception, and the execution of the second warranty deed; and further alleged that through error and mistake of the scrivener of the first warranty deed, and through mutual mistake, oversight and error on the part of defendants and the plaintiff and her husband, there was erroneously and mistakenly omitted from the first warranty deed an appropriate reservation of one-half interest in the minerals under said land as provided in the contract of sale, and that through such mutual mistake and oversight it was erroneously and mistakenly prepared, executed, delivered and accepted without such mineral reservation; that when defendants discovered such error, they notified plaintiff; that defendants for the sole and only purpose of correcting said error, oversight and mistake in the description in said original deed and in omission of the reservation and exception as set forth in the contract, after consultation with and advice of counsel, did execute, record, and deliver to plaintiff the second warranty deed correcting such errors and mistakes; and defendants prayed judgment for costs. To such answers, plaintiff filed a general denial.

The testimony is support of plaintiff's petition may be narrated in part as follows: On September 28, 1946, plaintiff and her husband, who is now deceased, purchased the land in question from defendant company under a contract calling for yearly payments of not less than $500 over a period of several years. The contract of purchase gave plaintiff the right to pay all or any part of the agreed yearly payments in advance and reduce the interest accordingly. Upon full payment the defendant company was to deliver to plaintiff and her husband a warranty deed to the premises in question reserving in the defendant company an undivided one-half interest in the minerals thereunder for a period of ten years. This contract was placed of record. Defendant Newman as secretary-treasurer of defendant company carried on the negotiations for sale of the property. Plaintiff and her husband made several advance payments on the purchase price the first year and thus the contract was never in default. In the month of August, 1947, as a result of a visit to his office by Ernest Palmer, plaintiff's deceased husband, George Templar--who for a considerable time had acted as attorney in various matters for the Palmers--called defendant Newman and told him that Palmer wanted to see Newman about whether he could pay off the contract on the land involved and was told by Newman to have Palmer come to see him. On August 6, 1947, less than a year from the time of execution of the contract, the balance due under the contract was paid by the Palmers and a warranty deed was executed by defendant company conveying the premises to the plaintiff and her husband, which...