Rounsaville v. Hazen

• Court: Kansas Supreme Court
• Writing for the Court: VALENTINE, J.:
• Citation: Rounsaville v. Hazen, 33 Kan. 71, 5 P. 422 (Kan. 1885)
• Decision Date: 07 January 1885
• Parties: HARVEY M. ROUNSAVILLE v. WILLIAM R. HAZEN

5 P. 422

33 Kan. 71

HARVEY M. ROUNSAVILLE v. WILLIAM R. HAZEN

Supreme Court of Kansas

January 7, 1885

Error from Shawnee District Court.

ACTION in the nature of ejectment, brought by Hazen against Rounsaville. August 4, 1883, judgment was rendered for the plaintiff. The defendant brings the case to this court. The material facts are stated in the opinion.

Judgment affirmed.

Wm. P Douthitt, for plaintiff in error.

J. P Greer, and Hazen & Isenhart, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought by William R. Hazen in the district court of Shawnee county, on May 26, 1882, against Harvey M. Rounsaville, to recover lots 385 and 387 on Taylor street, in the city of Topeka. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and judgment was rendered accordingly. The defendant brings the case to this court for review. It is admitted that both parties claim title to the property under Jay Ward, and it is incontestably proved that both parties hold title under George M. Noble, the grantee of Ward and wife and the grantor of Rounsaville. The principal facts of the case appear to be substantially as follows: On January 14, 1873, Ward owned the property in controversy, and on that day he and his wife conveyed it to George M. Noble by a quitclaim deed duly executed and acknowledged before John A. Gray, notary public. This deed was recorded January 16, 1873. The defendant attempted to show that this deed was a forgery, but utterly failed in the attempt. On February 1, 1875, Janet Butler recovered a judgment in the district court of Shawnee county against Samuel F. Craig and wife and George M. Noble. All the property of Craig and wife, subject to judicial process, was sold on such judgment, but not for enough to satisfy the judgment, and there still remained due on the judgment a sum of money ranging somewhere from $ 300 to $ 400. On October 22, 1878, Noble procured F. G. Hentig to enter a release of the judgment as against Noble on the appearance docket of the district court of Shawnee county, which release reads as follows: "October 22, 1878.--This judgment, rendered against George M. Noble as indorser, is hereby released as to him, this 22d day of October, 1878.--F. G. HENTIG, Attorney of record." On October 25, 1878, Noble, with his wife, conveyed the property in controversy, by warranty deed, to Harvey M. Rounsaville, the defendant in this action, and the deed was recorded on December 30, 1878. About January 21, 1880, Noble commenced an action in the district court of Shawnee county against Mrs. Butler and others, to enjoin the collection, as against him, of the remaining portion of said judgment, upon the ground that the judgment had been obtained against him through fraud and mistake, and had been subsequently released. This case was finally decided against Noble, and in favor of Mrs. Butler, at the January term of the supreme court in 1881. (Noble v. Butler, 25 Kan. 645.) On November 15, 1881, Mrs. Butler assigned and transferred the judgment to William R. Hazen. Executions had been issued on this judgment from time to time, so that the judgment never became dormant. On March 25, 1882, a final execution was issued on the judgment, and was immediately levied upon the aforesaid lots, and on April 29, 1882, the lots were sold under such execution to William R. Hazen, for $ 1,334. On May 22, 1882, the sale was confirmed, and on the next day the sheriff executed a deed for the property to William R. Hazen; and on May 26, 1882, Hazen commenced this action against Rounsaville for the recovery of the property. After paying the foregoing judgment, with all the interest and costs thereon, out of the proceeds of said sale, a balance of $ 369.40 still remained in the hands of the sheriff, and a dispute arose as to who was entitled to this surplus fund -- Noble, or Rounsaville. It was finally decided, however, in the supreme court, that Rounsaville, as the grantee of Noble, was entitled to the fund. (Butler v. Craig, 29 Kan. 205.)

The plaintiff in error, defendant below, claims that the court below erred: First, "in declaring as a matter of law that the release executed by Hentig was void;" second, in holding that the notice of the sheriff's sale was valid, the notice having been published in a weekly newspaper for more than thirty days, but not in every issue of the newspaper up to the day of sale. (McCurdy v. Baker, 11 Kan. 111; Whitaker v. Beach, 12 id. 492.)

We shall consider these alleged errors in their order.

I. The plaintiff in error, defendant below, claims that the court below erred in declaring as a matter of law that the said release was void, for various reasons, among which are that presumptively, the lease is valid. Presumptively, Hentig had authority as an attorney-at-law to enter the release; the evidence of Noble and even of Hentig tended to prove that Hentig had authority to enter such release; the record of the case in which the judgment was rendered tended to show that Hentig had such authority; Rounsaville was an innocent and bona fide purchaser of the property; and as Mrs. Butler and Hazen permitted him to occupy the property and to make improvements thereon from October 25, 1878, the time when Noble and wife conveyed the property to Rounsaville, up to May 26, 1882, the time when Hazen commenced this action against Rounsaville, Hazen is estopped from claiming that the said release is void. We are inclined to think, however, that the decision of the court below with reference to the validity, or rather invalidity, of the release is correct. The release, as entered upon the appearance docket, had no more force than though it had been entered upon a separate piece of paper and handed to Noble or Rounsaville; for there is no statute authorizing a release, or even a satisfaction of payment, of a judgment to be entered upon the appearance docket. And the release in the present case does not purport to show a satisfaction or payment of the judgment, or any payment on the part of Noble, and in fact Noble had never paid anything; but the release merely purports to show a naked, voluntary release; and it does not even show that Hentig was the attorney or agent of Mrs. Butler; and he was not in fact her attorney or agent at the time of entering the release. The evidence is conclusive upon that point. At one time it seems he was her attorney, but that relation had ceased to exist long before...