Travis v. Glick

• Decision Date: 10 June 1939
• Docket Number: 34299.
• Citation: 150 Kan. 132,91 P.2d 41
• Parties: TRAVIS et al. v. GLICK et al. (SEAMANS, Intervener).
• Court: Kansas Supreme Court

91 P.2d 41

150 Kan. 132

TRAVIS et al. v. GLICK et al. (SEAMANS, Intervener).

No. 34299.

Supreme Court of Kansas

June 10, 1939

Rehearing Granted July 8, 1939.

Syllabus by the Court.

In action to partition realty, wherein intervener filed intervening petition alleging that he had been induced through fraud of plaintiff to convey to plaintiff an interest in lands in question, two-year statute of limitations was applicable. Gen.St.1935, 60-306, subd. 3.

Where the trial court made extensive findings of fact, it would be presumed that all facts that the trial court deemed necessary to support its judgment were included in the findings.

If trial court's extensive findings of fact lacked essential facts necessary to sustain the judgment, the judgment would be reversed.

As respects limitations, one who sought to have a deed reformed was bound to take notice of an adjudication in an earlier action, where that adjudication affected his title to the realty in question.

In action to reform a deed on account of mutual mistake or fraud, the two-year statute of limitations begins to run when the one claiming fraud or mutual mistake first discovers or has constructive notice thereof. Gen.St.1935, 60-306, subd 3.

In action to partition realty, wherein intervener filed intervening petition alleging that he had been induced through fraud of plaintiff to convey to plaintiff an interest in the lands and wherein intervener sought to have deed reformed, a finding that plaintiff, who claimed benefit of two-year statute of limitations, was a resident of another state, was not a finding of "absence from the state" sufficient to toll statute of limitations, since a finding that plaintiff was permanently absent from state was necessary. Gen.St.1935, 60-306, subd. 3.

The Supreme Court would take judicial notice that the stockyards in Kansas City were located partly in Kansas.

Absence of defendant from state does not toll limitation of action to declare a constructive trust in realty since action may be started at any time, by obtaining service by publication. Gen.St.1935, 60-306, subd. 3.

In action to partition realty, wherein intervener sought to have a deed conveying an interest in the lands to plaintiff reformed on ground of fraud and to have a constructive trust declared, intervener's cause of action was an "equitable action," which was barred by laches where ten years had elapsed before intervening petition was filed and there had been a change in circumstances of parties to disadvantage of plaintiff.

1. A party who brings an action to reform a deed is bound to take notice of an adjudication in an earlier action where that adjudication affected his title to the real estate in question.

2. In an action to reform a deed on account of mutual mistake or fraud, the statute of limitations begins to run when the party claiming fraud or mutual mistake first discovers or has constructive notice of the fraud or mistake.

3. A finding that a party claiming the benefit of the statute of limitations was a resident of another state is not a finding of absence from the state sufficient to toll the statute of limitations.

4. This court will take judicial notice of the fact that the stockyards in Kansas City are located partly in Kansas.

5. An action to declare a constructive trust in real estate may be started by obtaining service by publication regardless of whether the defendant is in the state or not.

6. An action such as that described in the foregoing syllabus is an equitable action, and where a party waited ten years to bring it and there was a change in the circumstances of the parties to the disadvantage of one of them, the action is held to be barred by laches.

Appeal from District Court, Jewell County; W. R. Mitchell, Judge.

Action to partition realty by Victor Travis and others (Olen C Seamans) against Pearl Glick and others, wherein Kenneth Charles Seamans intervened. From a judgment in favor of the intervener, Olen C. Seamans appeals.

Judgment reversed, with directions to render judgment for Olen C Seamans.

D. F. Stanley, of Mankato, for appellant.

J. W. Ross and J. R. White, both of Mankato, for appellee.

SMITH Justice.

This was an action to partition real estate. Judgment was for an intervening petitioner. Plaintiff appeals.

The action was brought against the record title holders to 240 acres of land. The defendants were all heirs of Isaac Nees. The plaintiff was the husband of one of the heirs who had died before the action was brought. The plaintiff claimed to be the owner of an undivided one-fifth interest in the land in succession to his wife.

The petition alleged that subsequent to the death of Isaac Nees, Edith Jewell Seamans died intestate, leaving as her only heirs her husband, the plaintiff, and her only child Kenneth and thereafter Kenneth conveyed his right, title and interest in this real property to the plaintiff.

The prayer was for a partition of the real estate.

Kenneth Seamans filed an intervening petition. In it he first denied all the allegations of the petition and denied that the plaintiff was entitled to any interest in the land. The intervening petition then alleged that the plaintiff had been at all times mentioned a non-resident of Kansas and a resident of Missouri; that during her lifetime his mother inherited from her father an undivided one-fifth interest in the land in question; that by the terms of the will of Isaac Nees if the mother of the intervener did not convey this undivided one-fifth interest it would descend entirely to the intervener and that the residuary clause of the will was as follows: "The remainder and residue of my estate I give and bequeath to my daughters hereinafter named, share and share alike, or in the event of the decease of either of them, the share of the deceased daughter shall be paid to their heirs, the issue of their own body."

The petition then alleged that on or about September 27, 1927, when the intervener was but two days over twenty-one, he executed a warranty deed to plaintiff for all his right, title and interest in the land in question. The petition then alleged that either by mistake and the wrong understanding of the facts which would amount to fraud on the intervener or through intent to defraud the intervener the plaintiff stated to the intervener at the time the deed was executed that plaintiff had inherited one half of the land that was devised to Edith Seamans and that the intervener had inherited the other half; that the intervener had always placed faith and confidence in his father and believed the statement. The petition further alleged that plaintiff told intervener that he desired to purchase the half interest at a price that would be more than it was worth in order to protect the interest of intervener and that the intervener believed this statement and believed that he owned only a half interest of his mother's interest in the land and he would not have executed the deed had he not believed plaintiff and he had only within a month or six weeks before filing the intervening petition learned that he had inherited the entire interest of his mother; and that he was misled either through ignorance of the facts or intentional design by the plaintiff into believing that he had inherited but a one-half interest of his father in the lands. The petition further alleged that the consideration for the deed was $1,500; that plaintiff had not paid and did not intend to pay that amount, and $1,500 was an inadequate consideration for a one-fifth interest in the lands; that he had only been paid two years interest on the $1,500 and no part of the principal had been paid. The petition further alleged that at the time of the execution of the deed the plaintiff promised to give the intervener a lien on the one-tenth interest to secure the payment of the purchase price and that this price was to be paid five years from the date of the deed with interest at six percent but that plaintiff had refused to execute the security or to make payment of the indebtedness. The petition further alleged that on or about May 18, 1929, the plaintiff executed with other grantors a deed to one quarter section of land in question to one Topliff for $1,800; that on or about March 26, 1930, one U.S. Godding by conveyance from plaintiff and his wife became the record title holders of an undivided four-fifths in another quarter section of the land in question for a consideration of $1,600; that these transfers were made without the knowledge of the intervener and came to his attention only within two or three months before the filing of the intervening petition. The petition further alleged that the plaintiff received as distribution from the fruits of these lands in the matter of the estate of Isaac Nees from 1928 to 1931 in the aggregate the sum of $1,144.65, and that he received in the aggregate $735 as his share in the sales just mentioned. The petition further alleged that he did not know the amount of rents received by plaintiff but asked for an accounting. The petition further alleged that if it should be determined that the deed from the intervener to plaintiff conveyed a one-tenth interest in the land that there was still due and owing from plaintiff to intervener the sum of $1,500 with interest at six percent per annum from September 27, 1929, until paid and if through the misinformation, ignorance of the facts or through intentional fraud of plaintiff the deed should be set aside then intervener should be decreed to be the owner in fee simple of a one-fifth interest in the lands in question. The intervener made no claim against the purchasers of the land.

The prayer of the petition was that the intervener be decreed to the owner of a one-fifth...