Reid v. Executor

• Decision Date: 07 December 1901
• Docket Number: 12,426
• Citation: 63 Kan. 745,66 P. 1021
• Parties: DORA A. REID v. ELI Mix as Executor, etc
• Court: Kansas Supreme Court

66 P. 1021

63 Kan. 745

DORA A. REID v. ELI Mix as Executor, etc

No. 12,426

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Elk district court; C. W. SHINN, judge.

STATEMENT

THIS was an action brought by Eli Mix, as executor and trustee of the estate of Hezekiah Gilbert, deceased (herein referred to as "the estate"), against Dora A. Reid (herein called "the defendant"), to compel specific performance of the following stipulation between the parties made in compromise and settlement of a foreclosure suit in the federal court:

"It is hereby stipulated by and between the parties hereto that said plaintiff shall release the mortgage sued on in this action so far as the same is a lien upon the lands described in the answer of said defendant Dora A. Reid, as guardian of said Eliza Simmons, and covering the interest that the said Eliza Simmons had therein at the time of the execution of said mortgage. It is further agreed that Dora A. Reid shall convey the remainder of the lands described in the said complainant's bill filed herein, by quitclaim deed, to such party as the said complainant shall direct; that such land, to be so conveyed by the said Dora A. Reid, is the land owned by G. O. Simmons and that was in his name at the time the mortgage herein sued on was executed. Said deed shall be executed and delivered as soon as the southwest quarter of said section 27 is mutually divided, if the same can be done and, if such division cannot be made, then said deed shall be executed and delivered immediately upon the release of said mortgage as above mentioned; that upon such release of said mortgage and the delivery of said deed the above-entitled action shall be dismissed so far as the interest owned by Eliza Simmons is concerned, and said complainants shall pay the costs of this suit.

"In witness whereof, we have hereunto signed our names this 12th day of November, 1897.

DORA A REID.

BURCH & BURCH AND J. A. MCHENRY

Attorneys for Plaintiff."

The facts involved in the making of this stipulation and those necessary to a determination of this controversy are substantially as follows: On the 1st day of April, 1889, one G. O. Simmons was the owner of the southeast quarter of section 27 and three acres in the southeast corner of the southeast quarter of section 28; Eliza Simmons, his sister was the owner of nine acres in the southeast corner of the southeast quarter of section 28 and eight acres in the northeast quarter of section 33; and the said G. O. Simmons and Eliza Simmons were the owners as tenants in common of the southwest quarter of section 27, all in township 30, range 11, Elk county. On said date, G. O. Simmons and Eliza Simmons executed a mortgage on the above-described property to one S. J. Haines, to secure payment of a promissory note in the sum of $ 2500. Thereafter, this promissory note became the property of the estate. Default having been made in the payment of this mortgage, foreclosure suit was commenced in the circuit court of the United States for the district of Kansas, third division, sitting at Fort Scott, Kan. Prior to the bringing of this foreclosure suit in the federal court, Eliza Simmons became insane, and Dora A. Reid was appointed guardian of her property. At the date of the above stipulation, both G. O. Simmons and Eliza Simmons had died intestate, leaving the defendant their sole surviving heir. In compliance with this stipulation, the suit in the federal court was dismissed and has not since been renewed. John Marshall, an attorney at law of Howard, Kan., represented the defendant in the suit in the federal court, and since said time has represented her interests in this transaction. One Charles W. Scranton, of New Haven Conn., acted as agent and representative of the estate in and about the compromise, settlement and division of the real estate under this stipulation.

After the making of this stipulation there was considerable correspondence between Marshal and Scranton as to the equitable division of the southwest quarter of section 27 between the parties, and it was not until the month of April, 1898, that a division was agreed on. By this division the defendant was to retain the west half of this quarter-section and the three acres owned by G. O. Simmons in the southeast quarter of 28, and was to convey under the stipulation the southeast quarter and the east half of the southwest quarter of section 27 to the estate. It appears that at the time of the making of this division, the name of the party to whom the defendant was to convey under the terms of the stipulation had not been designated by the estate, and was not designated until about November 1, when the name of Charles W. Scranton, the agent, was selected. Nothing further appears to have been done after the division of the property between the parties, nor further correspondence had between Marshall and Scranton, until November 1, when the following letter was written by Marshall:

"HOWARD, KAN., November 1, 1898.

"Charles W. Scranton, New Haven, Conn.:

"DEAR SIR -- In the Geo. O. Simmons matter, concerning which you wrote me several times, I desire some information from you now. Nearly a year ago we signed an agreement to convey the land owned by George O. Simmons and your client agreed to release the mortgage as to all owned by Eliza Simmons at the time of her death. A little more was to be released in the division of the land. A division has been agreed upon. We desire to make the deed and procure the release. This agreement is in the hands of your attorneys, and has been for nearly a year. Can we get a release of the mortgage? If we cannot, we desire to rent the whole of the land for another year. I have sometimes doubted whether your client knows anything of the transaction. Please let me hear from you in regard to the transaction, and let me know whether we can expect the release of the mortgage.

Yours respectfully, JOHN MARSHALL."

On November 5, Scranton replied to this letter as follows:

"NEW HAVEN, CONN., November 5, 1898.

"Mr. John Marshall, Howard, Kan.:

"DEAR SIR -- I have yours of November 1, regarding the Simmons matter. We have not heard a word in regard to it since your previous letters on the subject.

"We have shown your letter to Mr. Mix, the trustee, and suggested to him that he write to Burch & Burch, and I have an idea that he will write a letter to them that will wake somebody up; that is, if it is possible to wake anybody up.

Yours truly, CHAS. W. SCRANTON."

And on December 19 Scranton again wrote Marshall, as follows:

"NEW HAVEN, CONN., December 19, 1898.

"Mr. John Marshall, Howard, Kan.:

"DEAR SIR -- I have had some correspondence with Mr. McHenry, and have written him to-day that I was going to leave the settlement of this Simmons matter to you, himself, and Mr. Eby, and for that purpose I have sent a satisfaction of the mortgage to Mr. Eby with a letter which Mr. Eby will show you, and I wish that you and Mr. McHenry would meet with Mr. Eby and fix this matter up.

"And now, Mr. Marshall I know that you are on the opposite side to us, but I have such a high regard for you that I do not believe you will take any advantage of us in any way, and as I also have confidence in Mr. McHenry, I believe that with the assistance of Mr. Eby, who is probably a disinterested party in the matter, you probably can come to some kind of an amicable settlement.

Yours truly, CHAS. W. SCRANTON."

On the 11th day of November the defendant executed a quitclaim deed under the terms of the stipulation and division, and on the 12th day of December presented the deed to the estate and offered to deliver the same upon the execution of the release of the mortgage, as provided in the stipulation, on the land to be retained by her, and notified the estate that unless such release was made within one week, and the stipulation complied with, she would refuse to be bound by its terms. On the 22d day of November, said stipulation not having been complied with or release of the mortgage produced, the estate was notified that the defendant refused longer to be bound by the terms of the stipulation. On the 23d day of December the estate tendered the mortgage released to the defendant and requested delivery of the deed. No objection was made by the defendant to the form of the release, nor by the estate to the deed tendered by the defendant. After the 22d day of...