The Missouri v. Pratt

• Decision Date: 10 March 1906
• Docket Number: 14,349
• Citation: 85 P. 141,73 Kan. 210
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. C. H. PRATT

85 P. 141

73 Kan. 210

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. C. H. PRATT

No. 14,349

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Error from Allen district court; OSCAR FOUST, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DAMAGES--Breach of Warranty--Grantor Estopped from Pleading the Statute of Limitations. In an action for damages for the breach of a covenant of warranty in a conveyance of real estate it appeared that at the time of the delivery of the deed and the payment of the consideration by the grantee a third person was in actual possession of the real estate, claiming to hold under a title paramount to that of the grantor in such deed. Such occupancy and claim were well known to the parties to the conveyance, and they knew that the occupant intended to hold possession until ousted by judicial process. Litigation was then pending and suits were contemplated by the grantor which would finally determine the ownership of such real estate. In the litigation which ensued the occupant was successful in the lower courts, but the grantor carried the cause to the supreme and federal courts. The grantee, concluding that the grantor would eventually lose, insisted upon repayment of his money. The grantor, however, by assurance that his title would ultimately be established, and, if not, that the money would be refunded, requested and induced the grantee to wait until the end of the litigation, which he did, relying upon the representations of the grantor. The matter was not ended until long after the time provided by the statute of limitations within which an action upon the covenant of warranty might have been brought had expired. Soon after the final determination of the litigation, which was adverse to the grantor, the grantee brought an action upon the covenant of warranty in the conveyance. The grantor pleaded the statute of limitations. Held, that the grantor is estopped from maintaining such defense.

John Madden, and W. W. Brown, for plaintiff in error.

Cates & Cates, for defendant in error.

GRAVES J. All the Justices concurring.

OPINION

GRAVES, J.

The only question involved in this case is the statute of limitations as applied to a covenant of warranty in a conveyance of real estate. The facts briefly stated are these:

In 1889 the plaintiff in error conveyed the land in controversy to the defendant in error by an ordinary deed of general warranty, in consideration of $ 954.20 cash paid at that date. At the time of such conveyance the grantor held a patent to the land from the United States. The land was occupied by one N. L. Ard, who claimed it as a settler under the homestead and preemption laws of the United States. He settled thereon in 1866, long before the plaintiff in error received its patent thereto. On July 26, 1866, the United States, by an act of congress, granted the alternate sections of a ten-mile strip of land to the plaintiff in error, then known as the Union Pacific Railway Company, Southern Branch, upon conditions named in the grant. To indemnify the company from loss on account of lands to which homestead and preemption rights might attach before these conditions were complied with, the act provided that the company might select in lieu thereof an equal amount of land from lands adjacent to the ten-mile strip belonging to the United States. There was a large number of settlers upon these lands claiming under the homestead and preemption laws, and a sharp controversy arose between them and the railroad company as to their respective rights thereto.

The land in controversy in this action was outside the ten-mile strip. On November 3, 1873, the company selected it as an indemnity for lands lost as before stated. The controversy between the settlers and the company involved many homes and large and valuable tracts of land. It aroused great excitement, and many lawsuits were commenced relating thereto, both in the federal and local courts. The claims of the respective parties were subjects of public discussion, and were matters of general notoriety and common knowledge. This controversy continued without interruption from the date the land was selected by the company to December 19, 1900, a period of sixteen years prior to the execution of the conveyance to the defendant in error. To settle this dispute Pratt, the defendant in error, brought an action of ejectment against Ard in 1889 to recover a part of this land. The case was carried to the supreme court of the United States, where it was decided in favor of Ard on March 4, 1895. (Ard v. Brandon, 156 U.S. 537, 39 L.Ed. 524, 15 S.Ct. 406.) In 1894 the defendant in error commenced an action of ejectment against Ard to recover another part of the land involved in this action. This case was taken to the supreme court of this state, and decided against Pratt on June 8, 1901. (Pratt v. Ard, 63 Kan. 182, 65 P. 255.) On December 19, 1900, in a case brought by the United States in the circuit court for Kansas against all parties interested in the ten-mile strip and indemnity lands, the patent to the plaintiff in error for the lands involved in this action and the conveyance to the defendant in error thereof were canceled, and soon afterward the land was patented to Ard. The defendant in error was never in possession of this land, and never received any profits therefrom because of the adverse possession of Ard. During the progress of the litigation, and after the conveyance to the defendant in error, considerable correspondence occurred between the attorneys for the company, who were fully authorized to bind the company thereby, and Pratt and his attorneys, among which were the following letters from T. N. Sedgwick, general attorney for plaintiff in error:

"PARSONS, KAN., November 18, 1895.

"I have your favor of the 16th, stating that the case of yourself against Ard for possession of the east half of the southeast quarter of 2-26-20 was decided against you by the court and in favor of Ard, and I note what you say about not taking the case further unless the company requires it.

"You will readily understand that you are hardly in a position to compel the company to assume all responsibility in this case at this late day. This suit has been pending since January 5, 1895, the date of the filing of your petition, and yet no notice whatever was given the company of the pendency thereof until the last ten days, and then we were right in the midst of a half a dozen courts, where we had more business than we could attend to. Of course, if you had given us notice earlier we could have assumed the responsibility which you now ask us to assume, but it was utterly impossible for me to be present at the trial of this case. I can only say we desire the case carried clear through all the courts.

"From your statement of the case to me Mr. Ard has not a ghost of a show, in my opinion. I have great confidence in the ability and integrity of Mr. Cates and Mr. Foust, and have no doubt they made the best case possible for you to make.

"I hope you have taken time to take the case to the supreme court, and as soon as I can get time I will investigate the matter, and if you do not desire to carry the matter further I will do it myself in your name.

"You spoke of the other cases. Of course, I know nothing of the other cases that you have lost, except the other piece of land owned by Mr. Ard. If you have any claim against the company which you have not presented, and which you desire to make, you will have to make it and present it in due form, so that it can be properly investigated.

"Please write me how much time you have to make a case for the supreme court in the case of yourself against Ard, and whether or not you have the record in shape and tried it with a view of going to the supreme court. Of course, we do not give up on single trial."

"PARSONS, KAN., February 18, 1898.

"I have before me your favor of the 12th instant, and also yours of January 30, regarding the case of yourself against N. L. Ard, which you designate as the statute-of-limitations case.

"This case was taken to the court of appeals at Fort Scott, the record being filed there October 28, 1896, as shown by the clerk's letter to me. A waiver of summons was filed in the case on November 10, 1896. Its number on the clerk's docket is 422.

"With reference to your claim for refund of money, I can tell you nothing more than what I have already told you. At Mr. Rouse's request, I sent him a statement of such lands as I supposed we would eventually be called upon to refund the purchase-money, and yours was included in the list. Since that time patents have been issued to some of the land, and certain decisions have been rendered which looks as though our title to all this land would be good. I apprehend our company is waiting to see what the decision of the circuit court will be with reference to these lands. If your title is made good, there is nothing then due you from the company; if, on the other hand, your title is not made good, we certainly will have to refund you the money, I suppose. But you ought to wait patiently, as the others are doing, until this litigation is determined. I know how you feel about it, and you do not owe me any apology for anything you have said."

"PARSONS KAN., March 28, 1900.

"I have before me your favor of the 27th, and I note you say that you sent me a copy of a letter from the commissioner to the register of the Topeka land-office sent you by Mr. Pratt and asking me to return the same. Beg to advise that the papers you sent were sent to our attorneys, Britton & Gray, and were returned to you with the answer of Britton & Gray on March 3. I at the same time enclosed you a copy of the protest which...