Toner v. Conqueror Trust Co.

• Decision Date: 01 December 1930
• Docket Number: 29,550
• Citation: 131 Kan. 651,293 P. 745
• Parties: CHARLES G. TONER, Appellant, v. THE CONQUEROR TRUST COMPANY, Appellee
• Court: Kansas Supreme Court

293 P. 745

131 Kan. 651

CHARLES G. TONER, Appellant, v. THE CONQUEROR TRUST COMPANY, Appellee

No. 29,550

Supreme Court of Kansas

December 1, 1930

Decided July, 1930.

Appeal from Kiowa district court; KARL MILLER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EXECUTORS AND ADMINISTRATORS -- Foreign Administration -- Presentation of Claims--Application of Nonclaim Statute. The statute of the state of Missouri relating to the time within which claims may be filed in a probate court against the estate of a deceased, commonly known as the statute of nonclaim, has no extraterritorial effect in Kansas, and a citizen of Kansas who has a claim against a deceased nonresident is not barred from recovery against a foreign administrator by failure to present his claim within the time limited in the probate court in Missouri in which administration proceedings were taken out at the domicile of the nonresident deceased.

2. SAME--Right to Ancillary Administration of Indebtedness at Domicile of Debtors. Where a debt is evidenced by a promissory note secured by a real-estate mortgage, and this note and mortgage are in the possession of an administrator of the estate of the deceased duly appointed at the domicile of the deceased, an administration cannot be had in this state on the same indebtedness at the domicile of the debtor.

3. SAME--Necessity of Demanding Ancillary Administration--Application of Local Nonclaim Statute. Under the circumstances as shown in syllabus 2, a citizen of this state who is a creditor of a nonresident deceased cannot demand administration proceedings at the domicile of the debtor residing in this state, and such creditor is therefore not barred by any neglect to ask for appointment of an administrator in this state at the domicile of the debtor; neither is he barred by the Kansas statute of nonclaim from prosecuting his claim against the foreign administrator in the courts of this state where jurisdiction is properly obtained.

4. APPEAL AND ERROR--Scope of Review--Limitation to Matters Covered by Motion for New Trial. Where a notice of appeal is given within the statutory time from the date of the order overruling the motion for a new trial and the appeal is taken from that order, all questions properly raised by the motion for new trial and necessarily involved in its consideration are reviewable by this court.

5. DEEDS--Recital as to Consideration Prima Facie Conclusive. The introduction of a deed reciting a definite amount as consideration for the deed, where the receipt of the amount is acknowledged in the deed, is prima facie evidence of the amount paid for the property, and where it is not controverted by any other evidence it is held that such a showing is sufficient to establish the amount paid by the grantee in the deed.

Arthur Scates and Albert Watkins, both of Dodge City, for the appellant.

O. G. Underwood, of Greensburg, for the appellee.

OPINION

JOCHEMS, J.:

This action was brought by plaintiff against the defendant as administrator of the estate of Samuel C. Gorrell, seeking to recover judgment against the administrator on account of a breach of warranty contained in deeds executed and delivered to plaintiff by the deceased prior to his death. The trial resulted in judgment in favor of defendant, and plaintiff appeals:

The record shows the following situation:

Samuel C. Gorrell and Melissa C. Gorrell were husband and wife. Prior to the death of Melissa C. Gorrell they acquired two quarter sections of land in Kiowa county, Kansas, which were conveyed to them jointly. Melissa C. Gorrell had been married three times. As a result of her first marriage to a man named Madaus she had two children, W. H. Madaus and Mary Madaus. After her husband died she married one Patrick Toner, who was the father of the plaintiff in this action. By him she had two children, the plaintiff, and Vannetti Toner, now Vannetti Bratton. After the death of Patrick Toner she married Samuel C. Gorrell and had one child by him, Teressa Gorrell. Teressa Gorrell married one Lon Gaut and to them one child was born, Marvin Gaut. Both Teressa and her husband died, leaving the son Marvin. When Melissa C. Gorrell died she left surviving her the following heirs at law: Her husband, Samuel C. Gorrell; W. H. Madaus and Mary Madaus, children of her first marriage; Charles G. Toner and Vannetti Bratton, children of her second marriage, and Marvin Gaut, the son of her daughter by her third marriage. It appears, therefore, that at her death the one-half interest in the two quarter sections of land which she owned descended as follows: one-half thereof, or a one-fourth interest, to her husband, Samuel C. Gorrell; and the other half (or one-fourth interest) to her children and the grandchild above named, equally share and share alike. These five descendants inherited one-fourth, or a one-twentieth each, so that following the death of Melissa C. Gorrell the two quarter sections of land were owned three-fourths by Samuel C. Gorrell and an undivided one-twentieth each by the four children and the grandchild named above.

Subsequent to the death of Melissa C. Gorrell, Samuel C. Gorrell again married, and with the above situation existing with reference to the title to the real estate and being the owner of only an undivided three-fourths interest, on August 27, 1920, he and his then wife executed a general warranty deed to one quarter section of land to the plaintiff herein for a consideration of $ 8,000, as recited in the deed. Later on March 14, 1921, and with the same situation existing with regard to the title, Samuel C. Gorrell and wife conveyed the other quarter section to the plaintiff by general warranty deed for a recited consideration of $ 5,500. At that time the appellant paid Gorrell $ 1,500 cash and executed a purchase-money mortgage on the quarter section for the remainder of the price, $ 4,000.

From the foregoing it appears that the warranty deeds made by Samuel C. Gorrell and wife were effectual to convey only a three-fourths interest in the real estate, and that there was a failure of title to the extent of a one-fourth interest in both quarters.

Following the execution of the deeds and the mortgage above mentioned, Samuel C. Gorrell died on August 20, 1921, a resident of Newton county, Missouri. On September 7, 1921, the appellee Conqueror Trust Company was appointed administrator of his estate. Upon its appointment the purchase-money note and mortgage of $ 4,000 given by the appellant on the last quarter section purchased came into the hands of the trust company as administrator. Thereafter the appellant paid one installment of interest on September 14, 1921, and made this payment to the administrator. Nothing further was paid, and when the mortgage became in default and the appellant did not pay it the administrator instituted suit in the district court of Kiowa county, Kansas, to foreclose the mortgage on the quarter section. The foreclosure suit was begun on December 21, 1923. In the foreclosure action the appellant employed an attorney to represent him. The attorney filed a demurrer to the petition, which was overruled, and thereafter filed no other pleading. The other heirs intervened in the foreclosure suit and established their interest in the real estate. The case proceeded to default judgment and appellant's interest in the property was advertised to be sold in the foreclosure proceedings. The sale was advertised to take place on December 7, 1925.

On December 5, 1925, two days before the advertised sale date, this action was brought. The petition is drawn in three causes of action: The first sets forth the transaction with regard to the purchase of the first quarter section, the breach of covenant of warranty in that instead of receiving full fee simple title the plaintiff received only a three-fourths interest in the land and asks to recover one-fourth of the purchase price because of failure of title to that extent. The second cause alleged the purchase of the second quarter section of land under similar conditions and for recovery of one-fourth of the purchase price paid for that quarter. The third recited the bringing of the foreclosure suit and the fact that judgment had been obtained by default and that a sale was advertised. It alleged, further, that on account of illness of the attorney for defendant in the foreclosure action no answer was filed in time, and also alleged an agreement between counsel for defendant in that case (appellant herein) and counsel for the trust company, that counsel for the defendant in the foreclosure case was to have time to file an answer later. That this agreement was violated and counsel for plaintiff in the foreclosure suit failed to give notice and took judgment by default contrary to the promise and understanding in open court between counsel in that case, and that the default judgment was therefore wrongfully obtained.

In the third cause of action in the instant case, after pleading substantially the foregoing, plaintiff asked that the judgment in the foreclosure case be set aside; that the sale of the land advertised for December 7, 1925, be restrained, and that plaintiff have judgment on his first and second causes of action against the defendant for the sum of $ 3,375, and that it be set off against whatever indebtedness plaintiff might owe the estate on the purchase-money mortgage.

Thereafter a hearing was had before the court and the issues on the third cause of action were first taken up and tried. This was treated as a petition to set aside and vacate the judgment in accordance with R. S. 60-3011. The court after hearing the evidence on the third cause of action decided against the plaintiff and entered judgment for costs in...