Payne v. Adams

• Decision Date: 03 July 1931
• Docket Number: 30035
• Citation: 300 P. 1072
• Parties: Ada PAYNE, Alta Bell Payne et al., Appellees, v. H. T. ADAMS and Gregg Realty Company, a Corporation, Appellants.[*]
• Court: Kansas Supreme Court

300 P. 1072

Ada PAYNE, Alta Bell Payne et al., Appellees, v. H. T. ADAMS and Gregg Realty Company, a Corporation, Appellants.^[*]

No. 30035

Supreme Court of Kansas

July 3, 1931

Appeal from District Court, Labette County; W. D. Atkinson, Judge.

W. W Brown, of Parsons, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, Mo., for appellants.

J. M Humphrey, of Erie, Payne H. Ratner, of Parsons, and C. W Prince and James N. Beery, both of Kansas City, Mo., for appellees.

OPINION

SMITH J.

This was an action for the cancellation of deeds to a farm in Neosho county and to a house and lot in Erie. Judgment was for plaintiff. Defendant appeals.

The petition of plaintiff alleged the ownership of the property in plaintiffs-the execution of deeds to D. D. Moorehouse and the changing of this name to that of H. T. Adams without the consent of grantors. The petition also alleged that, in return for the above-mentioned deed, appellees received from D. D. Moorehouse a deed to certain described property in Kansas City; that this deed was recorded without the knowledge of appellees, and that, before the commencement of this suit, a good and sufficient warranty deed for the Kansas City property was tendered D. D. Moorehouse; that George H Payne died November 6, 1927, leaving a wife and several grown children, the appellees here; and that Ada Payne, his wife, died May 15, 1929. It was further alleged that defendant H. T. Adams and the Gregg Realty Company fraudulently claim some interest in the Neosho county property, and that they are wrongfully in possession.

The petition alleged that on July 13, 1926, the Gregg Realty Company owned the Kansas City property, that the bare legal title was in D. D. Moorehouse, a stenographer for the Gregg Realty Company, and that the Gregg Realty Company was the agent for the Paynes in the matter of trading or disposing of the above-mentioned home and farm properties.

It alleged that shortly before July 13, 1926, one W. E. Solomon, an agent of the Gregg Realty Company, induced the Paynes to come to Kansas City and showed them the apartment in question; that said Solomon, together with other representatives of the Gregg Realty Company, pretended that the apartment was owned by a man named D. D. Moorehouse, and represented that it had been yielding, and in the future would yield, a gross annual revenue of $2,400; that the net annual income would be $1,700; that the property was incumbered with a mortgage of $8,000; that $500 would be due in December of 1926, and that the owner of the mortgage did not desire the payment of the mortgage when due, but had promised to renew it; that, if a new loan should be desired, there would be no difficulty in obtaining a loan for $15,000; that loans in that amount were common on similar properties, and that a loan in that amount had been promised on this property; that the reasonable market value of this property was $26,000, and it had never sold for less. It was alleged that Solomon and the other representatives of the Gregg Realty Company assured the Paynes that the Gregg Realty Company would protect and represent them faithfully in the negotiations and consummation of an exchange of the Neosho county property for the Kansas City property for a commission of $320.

It was further alleged that all of the above statements were false, and were known by the Gregg Realty Company and the representatives to be false, and were part of a scheme to deprive the Paynes of their property; that the Paynes signed a real estate exchange contract providing for the exchange of the properties with D. D. Moorehouse, relying upon the above false representations and believing them to be true; that on the same day the Paynes executed deeds to their properties and delivered them to the Gregg Realty Company to be delivered to D. D. Moorehouse, but that it never was delivered to her; that on July 30, 1926, the Paynes executed two additional deeds to D. D. Moorehouse, which were recorded, and that the name of the grantee, D. D. Moorehouse, was erased and the name H. T. Adams fraudulently substituted; that H. T. Adams was a stenographer in the office of the Gregg Realty Company, and holds only the bare legal title to the property; that the Gregg Realty Company was claiming to be the beneficial owner of the property; and that no such claim had ever been made to George H. Payne or Ada Payne in their lifetime, and the Paynes had never consented to the delivery of their deeds or the passing of this title to any one other than D. D. Moorehouse.

It was further alleged the Kansas City property was not owned by D. D. Moorehouse, but by the Gregg Realty Company, and that, had the Paynes known that D. D. Moorehouse did not own the apartment or that it was actually owned by the Gregg Really Company, they would never have executed the deeds in question or made the exchange. A tender of a deed to the Kansas City property back to the Gregg Company was alleged.

The appellants answered with a general denial, and denied specially that the Paynes had any interest in the Neosho county property. They also alleged that the claim of appellees was barred by the statute of limitations, and that they were guilty of laches, and were estopped from setting up the claim which was alleged in the petition. Trial was to the court.

Findings of fact and conclusions of law were made as follows:

"The court finds from the evidence, and also from the admissions in the pleadings (the allegations of agency in plaintiffs’ third amended petition, not being denied under oath) that defendant, the Gregg Realty Company, was the agent of George H. Payne and Ada Payne in the contract of exchange of the Neosho County, Kansas, farm and city property hereinafter described, for the Kansas City, Missouri property described in said contract of exchange and hereinafter described; the court further finds, that defendant, the Gregg Realty Company, was at the time of the exchange of properties the owner of said Kansas City, Missouri, property, standing of record in the name of D. D. Moorehouse, its ‘straw’; the court finds that the said George H. Payne and Ada Payne had no knowledge of the fact that defendant, the Gregg Realty Company, was at the time of the exchange of properties the owner of the said Kansas City, Missouri, property; and further finds, that defendant, the Gregg Realty Company, continued the agent of said George H. Payne and Ada Payne in the management of the said Kansas City, Missouri, property...