Robertson v. Howard

• Decision Date: 10 December 1910
• Docket Number: 16,463,16,462
• Citation: 112 P. 162,83 Kan. 453
• Parties: FRED ROBERTSON et al., Appellees, v. FRED HOWARD, Appellant. FRED ROBERTSON et al., Appellees, v. FRED HOWARD, Appellant
• Court: Kansas Supreme Court

112 P. 162

83 Kan. 453

FRED ROBERTSON et al., Appellees, v. FRED HOWARD, Appellant.

FRED ROBERTSON et al., Appellees, v. FRED HOWARD, Appellant

Nos. 16,462, 16,463

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Rawlins district court. Opinion on rehearing, filed December 10, 1910. First opinion (Robertson v. Howard, 82 Kan. 588) reversed (in part).

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. TIME--Determination of Rights of Parties--Commencement of Action. Except as to the computation of interest, and some other exceptional cases, the rights of the parties on a trial, in the absence of supplemental pleadings, are fixed as of the time of the commencement of the action.

2. EJECTMENT--Parties--Grounds. As between two parties neither of whom has a right to the possession of real estate of which one is in possession, the other can not oust him therefrom.

J. P Noble, L. H. Wilder, T. F. Garver, and R. D. Garver, for the appellants.

John E. Hessin, and Fred Robertson, for the appellees.

OPINION

SMITH, J:

To the opinion filed on the former hearing of this case ( Robertson v. Howard, 82 Kan. 588, 109 P. 696) is appended a copy of the findings of fact and conclusions of law of the court below. The time of the commencement of the action, with reference to the discharge of the trustee in bankruptcy and the discharge of the bankrupt from his debts, was not called to the attention of the court and was overlooked in the decision. This fact seems to be very important; indeed, determinative of the case.

A transfer of the certificates was attempted to be made by Henry Frauman, the purchaser of the certificates at the trustee's sale, on July 19, 1905. This sale was held to be invalid and to convey to Frauman no interest in the real estate in Kansas, hence his attempted assignments of the certificates was invalid, and we adhere to that view.

On June 19, 1907, the bankrupt (Hagener) and his wife executed to one of the appellees a quitclaim deed to the land, and an assignment of the certificates and of their rights to the rents and profits. This grantee, about the same time, assigned a one-half interest therein to his co-appellee.

This action to recover possession of the land was commenced July 12, 1907, while the trustee in the bankruptcy proceedings was in full control of the estate of the bankrupt, including this land, and continued so to be until November 20, 1907, when he was discharged. On this date the bankrupt was also discharged from all of his debts. A trial was had sometime after the last-mentioned date, but no supplemental pleadings were filed.

It was said in Reynolds v. Thomas, 28 Kan. 810:

"But the rights of the parties in the absence of supplemental pleadings are fixed as of the time of the commencement of the actions." (Syllabus, P 3.)

(See, also, 1 A. & E. Enc. L. & P. 1079, art. 12.)

This rule seems especially applicable to this case. In the matter of the computation of interest on a debt sued on we believe it is the general rule to allow interest, in case of recovery, to the time of trial. There are probably other exceptional cases where equity would adjust subsequently accruing rights; also where the parties to an action have, without objection, tried out and thereby submitted to the court subsequently accruing claims for adjudication. In this case, however, no reason appears for departing from the general rule.

Section 70 of the federal bankruptcy act of 1898 (3 U.S. Comp. Stat 1901, p. 3451, § 70) provides, in substance, that the trustee of the estate of a...