The Farmers & Merchants Bank of Courtland v. Tipton

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: The Farmers & Merchants Bank of Courtland v. Tipton, 159 P. 1016, 98 Kan. 34 (Kan. 1916)
• Decision Date: 06 May 1916
• Docket Number: 19,914
• Parties: THE FARMERS & MERCHANTS BANK OF COURTLAND, Appellee, v. E. B. TIPTON AND S. L. TIPTON, Appellants THE SWEDISH-AMERICAN STATE BANK OF COURTLAND, Appellee

159 P. 1016

98 Kan. 34

THE FARMERS & MERCHANTS BANK OF COURTLAND, Appellee, v. E. B. TIPTON AND S. L. TIPTON, Appellants

THE SWEDISH-AMERICAN STATE BANK OF COURTLAND, Appellee

No. 19,914

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

SALE OF LAND--Warranty Deed--Disputed Title--Vendor May Maintain Action to Quiet Title. A vendor sold land under an agreement with the vendee to give a merchantable title and place him in possession of the same, the agreed consideration being paid to the vendor. The persons from whom the vendor acquired the land and who were in possession of the same set up a claim that the deed they had executed to the vendor was in fact a mortgage, and they refused to yield possession of the land, so that the vendor was unable to carry out his agreement with the vendee. The vendee demanded the return of the money which he had paid for the land and refused to bring an action to quiet his title against adverse claimants. The vendor then brought an equitable action to quiet the title of the land, making the vendee a party defendant. Held, that the vendor had an interest in the land sufficient to maintain an action to quiet the title thereto and to determine adverse claims.

Henry H. Van Natta, of Belleville, F. W. Mahin, and I. M. Mahin, both of Smith Center, for the appellants.

W. D. Vance, R. E. McTaggart, and N. J. Ward, all of Belleville, for the appellees.

OPINION

JOHNSTON, C. J.:

This action was brought by the Farmers & Merchants Bank of Courtland, Kansas, to quiet title to some lots in that city. In the petition it was alleged that the defendants E. B. and S. L. Tipton, on June 9, 1911, conveyed the lots by warranty deed to the plaintiff in order to satisfy an indebtedness due to the plaintiff from them, and also in consideration of the satisfaction by the plaintiff of a judgment lien against the property; that soon thereafter the plaintiff put the Tiptons into possession as its tenants; and that on March 8, 1913, the plaintiff entered into an agreement with the defendant, the Swedish-American State Bank, in pursuance of which it conveyed all its right, title and interest in the lots to the latter, agreeing to deliver possession and give a clear and merchantable title thereto. It was further alleged that the plaintiff was unable to carry out its contract because the Tiptons refused to deliver possession of the lots, and that it was unable to give a clear and merchantable title because the Tiptons had filed of record an affidavit stating that the property was owned by E. B. Tipton, that it was their homestead, and that their deed of June 9, 1911, was in effect only an equitable mortgage given to secure the payment of their debt and not intended to transfer any interest in the property other than a lien. The Swedish-American Bank was made a party defendant because it refused to bring the action in its own name. It was further alleged that the plaintiff had such an interest in the property as to be entitled to bring the action in its own name, for the reason that in the event of its failure to deliver the kind of title agreed upon, it would suffer loss from the nonpayment of the consideration which had been withheld and retained by the defendant bank as a liability against the plaintiff.

The petition as well as the cross-petition filed by the defendant bank were attacked by the Tiptons by motions to make more definite and certain and by demurrers, all of which were overruled by the court, whose action is complained of in the appeal. But their main contention is that the plaintiff had no interest left in the lots so as to entitle it to bring an action to quiet title. In the cross-petition of the defendant bank it was alleged, among other things, that it had paid to the plaintiff the sum of $ 4000 as consideration for the lots, and that after the commencement of the action, and on March 6, 1914, it had tendered a quitclaim deed to the property, accompanied by a demand for the return of the consideration, because of plaintiff's failure to deliver a clear title and give possession according to the contract, and that both the tender and demand were refused by the plaintiff. The trial was before the court, which made certain findings of fact from the testimony produced, and it was found and adjudged that the title to the lots was in the plaintiff and its title was quieted as against all the defendants. There was a further finding that the plaintiff was indebted to the defendant bank in the sum of $ 4000 and that the latter was entitled to a lien on the lots to the extent of this indebtedness.

The questions presented for review arise upon the pleadings alone, the evidence not being preserved, and are raised by motions to require the pleadings to be made more definite...