Reitz v. Cooper

• Decision Date: 11 June 1927
• Docket Number: 27,630,27,631
• Citation: 123 Kan. 755,256 P. 813
• Parties: FRANK REITZ et al., Appellees, v. JOHN COOPER et al., Defendants; WILLIAM L. SHORE and THE ROXANA PETROLEUM CORPORATION, Appellants. WILLIAM L. SHORE and THE ROXANA PETROLEUM CORPORATION, Plaintiffs (Appellants), v. FRANK REITZ, THE AREADNA REITZ-RARRICK, DERBY OIL COMPANY and F. I. DE FOREST, Defendants (Appellees)
• Court: Kansas Supreme Court

256 P. 813

123 Kan. 755

FRANK REITZ et al., Appellees, v. JOHN COOPER et al., Defendants;

WILLIAM L. SHORE and THE ROXANA PETROLEUM CORPORATION, Appellants.

WILLIAM L. SHORE and THE ROXANA PETROLEUM CORPORATION, Plaintiffs (Appellants), v. FRANK REITZ, THE AREADNA REITZ-RARRICK, DERBY OIL COMPANY and F. I. DE FOREST, Defendants (Appellees)

Nos. 27,631, 27,630

Supreme Court of Kansas

June 11, 1927

Decided January, 1927.

Appeal from Sumner district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUIETING TITLE--Jurisdiction--Necessity of Possession by Plaintiff--Waiver by Filing Cross Bill. In an action to quiet title under our statute (R. S. 60-1801), where plaintiff alleges that he is in possession, the filing of a cross petition by defendant in which he alleges he is in possession, praying that his title be quieted, confers jurisdiction on a court to determine the question of title as between the parties and to grant relief to the party entitled thereto, irrespective of whether plaintiff or defendant was in possession.

2. TAXATION--Tax Deed--Rights of Purchaser--Application of Rule of Caveat Emptor. The rights of the holder of a tax deed are statutory, rather than equitable. Ordinarily the rule of caveat emptor applies to the purchaser of a tax deed. He is bound, as a legal question, to know the state of the tax records of the land he purchases.

3. REFORMATION OF INSTRUMENTS--Evidence. In an action to reform a deed and quiet title, the deed is competent evidence.

4. SAME--Ancient Deeds--Quantum of Proof. Ancient deeds should not be reformed without clear and convincing proof. The question whether the quantum of proof has been furnished is one primarily for the trial court.

5. ADVERSE POSSESSION--Possession by Permission. One who enters into possession of real property by permission, and whose possession is never adverse or hostile to the owner of the record title, cannot acquire title by adverse possession.

6. REFORMATION OF INSTRUMENTS--Special Findings--Evidence. In an action to reform certain deeds and to quiet title, where the trial court made findings of fact and conclusions of law, the record is examined and it is held that all material findings are supported by substantial, competent evidence.

W. E Holmes, D. W. Eaton, both of Wichita, E. W. Earhart, of Winfield, Kent K. Koerner, William F. Fahey and Truman Post Young, all of St. Louis, Mo., for the appellants.

E. J. Taggart, John B. Bradley, both of Wellington, Charles G. Yankey, John L. Gleason, Kenneth K. Cox, A. M. Ebright, L. C. Gabbert, Vincent F. Hiebsch and J. B. Patterson, all of Wichita, for the appellees.

OPINION

HARVEY, J.:

Frank Reitz and Areadna Reitz-Rarrick, brother and sister, and sole heirs at law of Benjamin L. Reitz and Nancy E. Reitz, both deceased, intestate, brought this action to quiet title to a small tract of land, about two and one-half acres, described by metes and bounds, being a part of lot 6, in section 25, township 31, range 2 east, in Sumner county, and to reform the description in certain deeds in the chain of title thereto. Plaintiffs alleged, among other things, that they were in the quiet and peaceable possession of the real estate. Many persons, and two corporations, were named defendants. All the defendants defaulted except William L. Shore and wife and the Roxana Petroleum Corporation. William L. Shore answered, denying the title and possession of the plaintiffs and alleging that he was the owner of the land in question, and had been the owner thereof since December 14, 1898, and since that date he has been in the open, notorious and peaceable possession thereof, and has paid the taxes thereon, and exercised all the rights of ownership thereof. The Roxana Petroleum Corporation answered, denying the claims of plaintiffs, and alleged that it was the owner of a vaild and subsisting oil and gas lease covering the land in question, from the record owners thereof, and that it had purchased such lease for a valuable consideration, without notice, actual or constructive, that plaintiffs had any claim or interest in the land; and further alleged, in a cross petition, that William L. Shore was the owner of the land in controversy, that he derived his title through certain conveyances, which were described; that William L. Shore and wife had executed to the Roxana Petroleum Corporation an oil and gas lease covering such lands, which lease is in force. Both answering defendants prayed that their respective titles be quieted as against plaintiffs. Plaintiffs, by reply to the answers and by answer to the cross petition, put in issue the allegations therein. The case was tried to the court, findings of fact were made, and judgment was rendered for plaintiffs. The answering defendants have appealed.

The Arkansas river flows from north to south through the southwest quarter of section 25, township 31, range 2 east. Its banks were meandered by the government survey. That part of the southwest quarter of the section west of the Arkansas river was designated by such survey as lots 5 and 6; lot 5 being the southwest quarter of the southwest quarter of the section west of the river, and lot 6 being the northwest quarter of the southwest quarter of the section west of the river. The Ninnescah river flows southeasterly through lots 6 and 5 into the Arkansas river, and is so situated that a part of lot 6 is south of the Ninnescah, and a small portion of lot 5 north of it.

The trial court made findings of fact and conclusions of law as follows:

"FINDINGS OF FACT.

"1. On the 10th day of September, 1872, Edward Sleigh received a patent for lots 5 and 6, in the southwest quarter of section 25, township 31, range 2, Sumner county, Kansas. Lot 5 was west of the Arkansas river, and all but a very small corner perhaps an acre, south of the Ninnescah river. Lot 6 was west of the Arkansas river, immediately north of lot 5, and contained about 16 acres.

"2. On April 22, 1872, Edward Sleigh and wife conveyed to A. J. Carpenter all that part of lot 5 of the southwest quarter of section 25, township 31, range 2, lying north of the Ninnescah river, being 16 acres, more or less. Evidently, from the number of acres conveyed, it was the intention to convey 16 acres in lot 6, and, further, from the fact that under said deed the grantee Carpenter went into actual possession of lot 6.

"3. On September 18, 1872, A. J. Carpenter and wife conveyed to Sidney W. Acton by deed the following-described land: Part of lot 5 of the southwest quarter of section 25, township 31, range 2, commencing at a stone in the west line of said section, set two chains 62 1/2 links (10 1/2 rods) south of the original quarter-section corner for said sections 25 and 26; thence east 17 chains and 40 links to the Arkansas river, a willow 3 inches in diameter, marked as corner tree; a cottonwood 5 inches, north 45 degrees west 10 links, then down the Arkansas river 10 degrees, west two chains and 85/100 (11 1/2 rods) to a willow six marked as a corner on the bank of the river (the corner being in the river); thence west 15 chains and 40 links (65 1/2 rods) to a stone in the section line; thence 2 chains and 75 links (11 rods) to the beginning, and containing 4.92 acres, more or less. It is evident that from the metes and bounds description, the recitation in this deed of lot 5 was a mistake, and should have been and was intended to be lot 6, and as further evidence of the mistake and intention, Sidney W. Acton went into the actual possession of the land described by such metes and bounds in lot 6.

"4. On November 15, 1883, Sidney W. Acton and wife conveyed to Benjamin L. Reitz and Nancy E. Reitz, the parents of these plaintiffs, the north half of this same tract described by metes and bounds, and conveyed by Carpenter to Acton, and also making the same mistake in the deed as to lot number, when it was the intention and should have described the property as in lot 6. And as further evidence of the mistake and intention, Benjamin L. Reitz, at the time he received his deed went into the actual possession of the metes and bounds description in lot 6, and has ever since said time been in the legal possession thereof.

"5. On the 19th of March, 1873, A. J. Carpenter and wife conveyed to C. C. Shore, father of W. L. Shore, a small tract lying along the north part of lot 6, and north of the land in controversy, and also described that conveyance as being in lot 5, when it was evident that it was intended to be in lot 6, and thereafter, on the 4th day of November, 1891, Edward Sleigh and wife quitclaimed to C. C. Shore, father of W. L. Shore, the lands described by metes and bounds, above referred to, and corrected the mistake of lot 5, to lot 6, the deed reciting that it was made to correct a former deed, made April 2, 1872.

"6. Edward Sleigh, the original patentee, and his heirs have always owned, and still own all of lot 5, and have never made any claim to any part of lot 6, and have never been in possession of any part thereof, north of the Ninnescah river, nor paid any taxes thereon since the conveyance to A. J. Carpenter on April 22, 1872.

"7. All that portion of lot 6, including plaintiffs' strip, and other strips south of the plaintiffs' was waste, sandy land, and originally valuable only for the timber growing thereon. There were a number of other strips south of plaintiffs' land sold to different people in the early settlement of the country for timber that was growing thereon. The strip of land in controversy was used by the senior Reitz so long as he had use for the timber.

"8. Up until the year 1890 different parts of lot 6, and including the plaintiffs' tract, were carried on the assessment rolls of the county as being in lot...