Roberts v. Osburn

• Decision Date: 02 February 1979
• Docket Number: No. 49420,49420
• Citation: 3 Kan.App.2d 90,589 P.2d 985
• Parties: Bryce M. ROBERTS and Delores A. Roberts, Appellants, v. Gilbert OSBURN and Judy Osburn, his wife, Louis W. Fundis and Annabelle Fundis, his wife, Tri-In-Co., Inc., a Kansas Corporation, Carl A. Butell and Susan A. Butell, his wife, the Baldwin State Bank, Baldwin City, Franklin Savings & Loan Ass'n, Ottawa, Appellees.
• Court: Kansas Court of Appeals

Page 985

589 P.2d 985

3 Kan.App.2d 90

Bryce M. ROBERTS and Delores A. Roberts, Appellants, v. Gilbert OSBURN and Judy Osburn, his wife, Louis W. Fundis and Annabelle Fundis, his wife, Tri-In-Co., Inc., a Kansas Corporation, Carl A. Butell and Susan A. Butell, his wife the Baldwin State Bank, Baldwin City, Franklin Savings &amp Loan Ass'n, Ottawa, Appellees.

No. 49420.

Court of Appeals of Kansas.

Feb. 2, 1979.

Syllabus by the Court

1. The seller of real estate may make a reservation in the deed of an easement over the land sold.

2. Placing a deed in escrow imposes certain conditions which must be met before delivery of the deed may be made, and legal title to the property in question does not pass until all of the conditions are performed and the deed is released from escrow.

3. When property rights to real estate have been split, with legal title vested in one individual and some or all of the beneficial or equitable rights vested in another, the question of who is the "owner" of the land cannot be answered by pinpointing who has legal title.

4. Whether the doctrine of relation back should be applied so as to vest the grantee with full title from the time that the deed is placed in escrow, or whether the conveyance should be held to pass full title only upon the performance of all the conditions, depends upon which of the two theories will promote justice under all of the circumstances of the case.

5. When parties enter into a contract for the sale of real estate pursuant to which the seller retains legal title as security for the purchase price and all of the beneficial incidents of ownership pass to the buyer, the seller has no greater rights than he would possess if he had conveyed the property and taken back a mortgage, and the buyer becomes the "owner" when the beneficial interest passes to him.

6. When land is conveyed by reference to a plat, a private easement (other than an easement by necessity) is created only if so intended by the parties.

7. When a plat is incorporated by reference into a deed for descriptive purposes, its effect is limited to being a descriptive tool; the plat itself does not convey.

8. A grantee under a deed referring to a plat would not be justified in looking only to the plat when examining his title; he would have to consider the plat in conjunction with other deeds and documents comprising the chain of title.

F. Duane Roberts, Baldwin City, for appellants.

Jerry L. Donnelly, Lawrence, for appellees.

Before FOTH, C. J., and REES and SWINEHART, JJ.

SWINEHART, Judge:

The plaintiffs appeal from the trial court's refusal to quiet their title to residential real estate in Baldwin City.

The plaintiffs, Bryce and Delores Roberts, will be referred to as the Plaintiffs. The defendants, Gilbert and Judy Osburn, will be referred to as the Defendants. The defendants, Louis and Annabelle Fundis, will be referred to as the Sellers. The other named defendants are irrelevant to this appeal and will not be mentioned.

The Sellers originally owned a large tract of land in Baldwin City. On November 13, 1964, they executed a warranty deed to Tri-In-Co., Inc. (hereinafter referred to as Tri-In-Co), a development corporation, conveying to Tri-In-Co some thirty-five acres of land. Tri-In-Co purchased the land for the purpose of subdividing it into small residential lots.

The Sellers' house, located on acreage which they did not sell, was immediately to the south of the property line between the land they retained and the land they sold to Tri-In-Co. It was so close, in fact, that their driveway was actually on land owned by Tri-In-Co.

To avoid the necessity of constructing a new driveway, the Sellers made a reservation of a driveway easement over Tri-In-Co's land in the November 13, 1964, warranty deed. The precise language used to reserve the easement is important to the case. It is set out below:

"(W)ith the delivery of this deed, party of the second part hereby grants to parties of the first part an easement of access across the following described land: (description of the property). Said easement shall not run with the land, but shall exist only as long as the property to the South of the conveyed tract is owned by the first parties. If party of the second part decides to dedicate the area on which said easement is granted as a street or roadway, said power to dedicate shall be paramount to first parties' easement rights." (Emphasis supplied.)

The next significant event that occurred was the filing of a plat showing the layout of the proposed subdivision. The plat was filed on December 10, 1965. It showed the tract divided into thirty-six lots. Roadways, streets and utility easements were shown. So was the Sellers' driveway easement. A short test, printed on the plat, recited the dedication of the streets and roads and the grant of a utility easement to Baldwin City and public utility companies. The plat showed the front building lines for each lot, as permitted by Baldwin's zoning restrictions, with an explanation of the zoning requirements in the text. Two driveway easements were shown the one in question and one running across lot 16 to lot 15, which had no street frontage. The text of the plat contained no mention of either easement.

On March 7, 1966, a quitclaim deed from the Sellers to Tri-In-Co was filed. The quitclaim deed covers the same property conveyed in the 1964 warranty deed. The quitclaim deed contains a statement that it was executed for the purpose of correcting the legal description of the 1964 warranty deed.

On April 26, 1973, the Plaintiffs purchased their lot by warranty deed from an individual who had bought it from Tri-In-Co. The deed contained this description of the lot:

"Lot Thirty-six (36) in Trail Side, an Addition to Baldwin City, As shown by the recorded plat thereof, in Douglas County, Kansas." (Emphasis supplied.)

Insofar as the record shows, only one plat was ever filed the one filed in 1965, which did in fact show the easement.

On September 15, 1974, Sellers conveyed a tract of land to the Defendants. The conveyed tract was the Sellers' original home place. The contract of sale acknowledged that there might be problems concerning the Defendants' use of the driveway easement, although the Sellers stated that they believed that the driveway easement was now a public one. The Defendants purchased the land on a fifteen year contract, so legal title remained with the Sellers. Other pertinent provisions of the contract will be discussed later.

On August 11, 1975, the Plaintiffs filed suit to quiet title. They requested that the court declare the encumbrance on their land, created by the driveway easement, terminated. The Defendants filed a K.S.A. 60-212(B )(6) motion to dismiss, basing the motion primarily on two premises: (1) the Sellers still had legal title and the Plaintiffs' action was therefore premature until legal title to the land passed to the Defendants; and (2) the private easement created by the warranty deed was superseded and made permanent by the plat, which indisputably showed the easement. The Plaintiffs' answer to this motion to dismiss raised yet another issue, besides denying the two mentioned above: the 1966 quitclaim deed, which made no mention of the easement, effected a termination of the easement.

After trial of the matter, the district court filed a journal entry containing the following points which are pertinent to this appeal: (1) the 1966 correctional quitclaim deed did not extinguish the easement; (2) the Sellers are still the legal owners of the land, and so long as they hold legal title, the easement exists; (3) the plat did not create a public easement; and (4) since the Sellers still own legal title to the land, the Plaintiffs' action to quiet title was premature.

The parties do not agree on the issues. A reading of both of the briefs shows that the following issues are raised. (1) Are Sellers still the "owners" of the tract purchased by the Defendants within the meaning of the reserving clause in the warranty deed by which the Sellers conveyed the land to the Plaintiffs' predecessors in interest? (2) What is the legal effect of the recorded plat, which shows the easement held by the Defendants? (3) What is the effect of the quitclaim deed filed in 1966, which was given and recorded for the stated purpose of correcting the legal description and which makes no mention of the reservation of the easement? (4) Which of these issues are properly reviewable by this court?

This court will first consider the question of whether the Sellers are still "owners" of the lot purchased by the Defendants within the meaning of the clause creating the easement. In effect, the Sellers made a reservation of an easement appurtenant to their own land in the 1964 warranty deed which they executed in favor of the Plaintiffs' predecessors in interest. This is permissible, especially since the reservation was made to preserve an existing way. See 25 Am.Jur.2d, Easements § 21. The reserving clause specifically stated that the easement would not run with the land; the servitude would cease to exist when the dominant tenement was no longer owned by the Sellers.

The question of whether the Defendants are entitled to use the driveway easement by virtue of the 1964 easement reservation is clearly dependent on the meaning of the phrase "owned by the first parties," for by the terms of the deed the easement is to last only so long as the dominant tenement is owned by the first parties (the Sellers). To answer this question, we must examine the terms under which the Defendants purchased their land from the Sellers. Briefly stated, the terms of the contract under which the Defendants purchased the dominant tenement from the Sellers are as follows: (1) a down payment of $5,000 was required, with the balance to be paid in equal monthly installments over a period of fifteen years; (2) the Sellers were required to execute a...