Penrose v. Cooper

• Decision Date: 09 March 1912
• Docket Number: 17,215
• Citation: 86 Kan. 597,121 P. 1103
• Parties: W. B. PENROSE, Appellee, v. S. W. COOPER et al. S. W. COOPER, Appellant
• Court: Kansas Supreme Court

121 P. 1103

86 Kan. 597

W. B. PENROSE, Appellee, v. S. W. COOPER et al.

S. W. COOPER, Appellant

No. 17,215

Supreme Court of Kansas

March 9, 1912

Decided January, 1912.

Appeal from Sedgwick district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENT--Ejectment--Res Judicata--Tax Deed. A decision is conclusive and binds the parties upon the facts as shown to exist when the case was tried. If upon a retrial a different state of facts is shown to exist the law declared in the former decision may have no application.

2. JUDGMENT Same. A decision of the supreme court holding a tax deed valid on the ground that it was five years old is not conclusive or binding upon the parties where it is shown on a retrial of the action or in another action between the same parties that the deed was of record less than five years when it was attacked.

3. PURCHASER--Tenant in Possession--Title--Notice--Due Diligence. Although the possession of a tenant is the landlord's possession, it is not of itself notice of the landlord's title, but is sufficient notice to put a person about to deal with the title upon inquiry.

4. PURCHASER Same. The law presumes that one who is about to deal with real estate has either made inquiry of the occupant's right, or has been so negligent that he can not be regarded as a bona fide purchaser. This presumption however, is a mere inference of fact which may be rebutted by proof that the purchaser made diligent inquiry and failed to discover the prior right.

5. PURCHASER Same. Possession alone, if open, notorious, and exclusive, is sufficient notice unless the subsequent purchaser shows that he pursued the inquiry with proper diligence and failed to obtain knowledge of the unrecorded instrument or of the right of the parties claiming under it.

6. PURCHASER Same. The plaintiff, who occupied the relation of a purchaser without actual knowledge of an unrecorded deed, inquired of the tenant and learned the name of the agent to whom the tenant paid rent. Relying upon his knowledge of the fact that the same person had been, until a short time before that, managing the property as agent for the record owner of the title, he failed to make any inquiry of the agent to learn the name of the owner. Upon these facts it is held that the question whether he acted with due diligence was one of fact for the jury to determine and not of law for the court.

Stanley, Vermilion & Evans, J. A. Brubacher, and J. A. Conly, for the appellant.

S. W. Shattuck, jr., for the appellee.

PORTER J. SMITH, J., and WEST, J., also dissent.

OPINION

PORTER, J.:

The property in controversy consists of two lots in the city of Wichita. Plaintiff's title rests upon a tax deed to The Hartford Western Land Company, dated November 28, 1896, recorded December 7, 1896, a quitclaim deed from the tax-title holder to The Anthony Investment Company, dated September 10, 1898, and a quitclaim deed from The Anthony Investment Company to plaintiff Penrose, dated October 2, 1901, which was recorded April 7, 1909. The plaintiff proved these conveyances and that possession was taken under the tax deed September 10, 1898, and held continuously until February, 1904, when defendant Cooper obtained possession without plaintiff's knowledge or consent and after a tenant of plaintiff had vacated the premises without plaintiff's knowledge.

Defendant Cooper's title rests upon mesne conveyances from the government. It appeared that two deeds from former proprietors conveying the property to him were executed and delivered with the name of the grantee omitted; but the defendant offered evidence to show that the instruments were delivered with authority on his part to insert his name as grantee.

The defendant objected to the introduction of the tax deed as evidence on the ground that it was invalid for reasons appearing upon its face, which, however, do not require specific mention here. The objection was overruled. There was a trial to a jury and a verdict for the plaintiff. The jury also returned a number of special findings.

It is claimed that the court erred in admitting the tax deed in evidence over the objections of the defendant, and in not adjudging the tax deed void. The same deed was before this court in Penrose v. Cooper, 71 Kan. 720, 725, 81 P. 489, 84 P. 115. That was an action in ejectment in which Cooper was plaintiff and Penrose defendant and involved the same property. Cooper recovered and Penrose appealed. On the first hearing the tax deed was held void on its face and the judgment was affirmed. Upon rehearing it was held that the deed having been of record five years before it was attacked, the defects were cured by inferences fairly to be drawn from a consideration of the entire instrument; and, therefore, the judgment was reversed and a new trial ordered with directions to admit in evidence the "five-year-old tax deed." (p. 727.)

That action has not been retried, but is still pending, the proceedings having been stayed by the district court to await the final disposition of the present action, which was commenced by Penrose as plaintiff, February 10, 1906, immediately following the mandate in the former case. When the former action was here the record showed that the petition was filed in the district court December 9, 1901, which was two days more than five years after the tax deed was recorded. It appears from the abstract in the case before us that since the former action was remanded the district court, by an order nunc pro tunc, has corrected the record so as to show that the petition in fact was filed December 4, 1901. It is obvious, therefore, that had the record when that case was before the court spoken the truth the tax deed would have been held void, since it was not five years old when Cooper brought his action.

Under these circumstances appellee's contention that the former decision of this court is res judicata can not be sustained. The decision is conclusive and binds the parties upon the facts as they were shown to exist when the case was first tried. If on the retrial a different state of facts is shown to exist the law declared in the former decision may have no application. (Cahn v. Tootle, 58 Kan. 260, 48 P. 919.) This court did not determine Penrose to be the owner of the property; nor did it direct judgment in his favor. On the contrary the cause was remanded for another trial with directions to admit in evidence the five-year-old tax deed. If upon the second trial it appear that the tax deed was in fact less than five years old when it was attacked, the trial court, upon the principles of law declared on the first decision (Penrose v. Cooper, 71 Kan. 720, 725, 81 P. 489, 84 P. 115), would be bound to adjudge that on the fourth day of December, 1901, the deed was void. The real question is whether W. B. Penrose is bound by the proceedings in the first ejectment suit from the date the action was begun, or only from December 9, 1901, when he was first made a defendant. To determine this question a further statement of facts is required.

The Anthony Investment Company held the tax title and was in possession of the premises. From March 25, 1901, S.W. Shattuck, jr., had control of the property and leased the same and collected the rents as agent for the company. On October 2, 1901, The Anthony Investment Company conveyed the property by quitclaim to W. B. Penrose. The deed was sent to S.W. Shattuck, jr., as the agent of Penrose, who was a nonresident. Shattuck did not record the deed, but took pains to inform the tenants sometime after he received it that he was collecting the rents for W. B. Penrose. He withheld the deed from record until after the tax deed was five years old and after Cooper's action in ejectment was commenced. In fact it was not recorded until 1909.

In the proceedings to correct the record in Cooper v. Penrose it was shown that the petition with the praecipe for summons was deposited in the clerk's office December 4, 1901. The deputy clerk with whom they were left did not file them when they should have been filed, but afterwards put thereon the file-mark with a stamp showing that they were filed December 7, although the trial court finds that they were actually filed December 4, 1901. The evidence taken at the same time shows that on the evening of December 7 Mr. Shattuck went to the clerk's office and found the papers there in the possession of Grant Knepple, deputy clerk. The action had not yet been entered upon the appearance docket. It was afterwards entered on the appearance docket, December 9, and with a pen the deputy clerk changed the date in the file-stamp from December 7 to December 9, but when he did this is not shown. Mr. Shattuck testified that on the evening of December 7, when he went to the clerk's office and found the papers there, Mr. Knepple told him that Mr. Brubacher had requested that the papers be not filed until he, Brubacher, should furnish a journal entry, showing the dismissal of a similar action in October previous. On December 9 Shattuck informed Brubacher, the attorney of Cooper, that Penrose had an interest in the property. Brubacher at once amended the petition and made Penrose a defendant. By this time the tax deed was more than five years old.

The jury had before them all the facts concerning the commencement of the former action. Their general verdict is in favor of Penrose. Included in their special findings are findings to the effect that Cooper did not know of the change in title prior to December 9, 1901; that he went to the premises about December 1, 1901, to ascertain the rights of the occupants therein and who their landlord was; that he did not ascertain from the tenants that there had been any change of title or interest;...