Siegel v. Hackler

• Court: Kansas Supreme Court
• Writing for the Court: PRICE
• Citation: Siegel v. Hackler, 310 P.2d 914, 181 Kan. 316 (Kan. 1957)
• Decision Date: 11 May 1957
• Docket Number: No. 40493,40493
• Parties: Peter SIEGEL and Mary R. Siegel, Appellants, v. Eugene T. HACKLER, Administrator of the Estate of Katherine Birrell, Appellee.

Page 914

310 P.2d 914

181 Kan. 316

Peter SIEGEL and Mary R. Siegel, Appellants, v. Eugene T. HACKLER, Administrator of the Estate of Katherine Birrell, Appellee.

No. 40493.

Supreme Court of Kansas.

May 11, 1957.

Syllabus by the Court

1. In an action to reform a deed on the ground of mutual mistake, the five-year statute of limitation (G.S.1949, 60-306, Sixth) is applicable, and is commences to run from the date the mistake is made.

2. Ambiguity in a deed consists of indistinctness or uncertainty of meaning, but ambiguity does not appear until application of pertinent rules of interpretation to the face of the deed leaves it genuinely uncertain which of two or more meanings is the proper meaning.

3. Where the provisions of a deed are ambiguous as to the intention of the grantor, all of the surrounding facts and circumstances attendant upon its execution may be considered in order to ascertain and carry out the intention of the parties.

4. Where the provisions of a deed are unambiguous, resort to rules of construction applicable to instruments which are ambiguous and not clear as to meaning, is not permitted.

5. In an action involving the construction of a deed, the record is examined and it is held: (1) If the proceeding be considered as an action for reformation of a deed on the ground of mutual mistake it was barred by the five-year statute of limitation; (2) the provisions of the deed are not ambiguous; (3) it was not error to exclude or disregard evidence as to the intent of the parties in its execution, and (4) as more fully set forth in the opinion, the court did not err in the judgment rendered.

John R. Keach, Mission, argued the cause and was on the briefs for appellants.

Eugene T. Hackler, Olathe, argued the cause and was on the briefs for appellee.

PRICE, Justice.

The question here involves the construction of a deed.

On October 26, 1937, the owners thereof conveyed by warranty deed all of Lot 3, Bel-Air Acres, a subdivision in Johnson County, Kansas, to Katherine Birrell, a single woman.

On July 27, 1938, Katherine executed a warranty deed, the material portions of which read as follows:

'This Indenture, Made this 27th day of July in the year of our Lord nineteen hundred and Thirty-eight between Katherine Birrell, a single woman, of the County of Johnson and State of Kansas of the first part, and Elizabeth Rooth, as a joint tenant with the grantor herein, with the remainder to the survivor, of the County of Johnson and State of Kansas of the second part.

'Witnesseth, That the said party of the first part, in consideration of the sum of . . . one dollar and other valuable considerations . . . Dollars to her duly paid, the receipt of which is hereby acknowledged, has sold and by these presents does grant and convey unto the said party of the second part, her heirs and assigns, all that tract or parcel of land situated in the County of Johnson and State of Kansas, described as follows, to-wit:

'An undivided one half interest in and to:

'All of Lot three (3) Bel-Air Acres, a subdivision in Johnson County, Kansas, according to the recorded plat thereof.

'Subject to the restrictions and encumbrances of record.

'It is expressly provided that in case of the death of either the said Katherine Birrell, party of the first part, or Elizabeth Rooth, party of the second part, the entire fee simple title to said real estate shall immediately pass to and vest in the survivor of them, absolutely.'

This deed was duly recorded on the day of its execution.

The property in question was held by Katherine and Elizabeth until Katherine's death, intestate, on June 27, 1954.

On September 3, 1954, Elizabeth executed a warranty deed purporting to convey to plaintiffs Siegel the entire interest in the property.

A question having arisen concerning the construction of the deed of July 27, 1938, from Katherine to Elizabeth, the Siegels commenced the instant proceeding in the nature of a claim against Katherine's estate, and the parties by appropriate pleadings joined issue on the question.

In other words, the matter amounts to this: If the deed from Katherine to Elizabeth conveyed the entire interest in Lot 3 in joint tenancy with remainder to the survivor, Elizabeth became the owner of such entire interest upon Katherine's death. On the other hand, if that deed conveyed only an undivided one-half interest in Lot 3 to Elizabeth in joint tenancy with remainder to the survivor, Elizabeth, upon Katherine's death, became the owner of only an undivided one-half interest in the property, and the other undivided one-half interest was a part of Katherine's estate.

The trial court construed the deed to create a joint tenancy with right of survivorship in an undivided one-half interest in and to Lot 3 in Katherine and Elizabeth, and held that following Katherine's death Elizabeth became the...