Webb v. Branner
| Decision Date | 05 March 1898 |
| Docket Number | 10534 |
| Citation | 59 Kan. 190,52 P. 429 |
| Parties | JOSIE WEBB v. JOHN S. BRANNER |
| Court | Kansas Supreme Court |
Decided January, 1898.
Error from Shawnee District Court. Z. T. Hazen, Judge.
Judgment reversed and cause remanded.
Keeler Welch & Hite, for plaintiff in error.
S. B Isenhart, for defendant in error.
This was an action by Josie Webb to recover from John S. Branner an undivided one-fourth interest in a valuable lot in the city of Topeka, together with the rents and profits thereof.
Prior to October 10, 1875, the lot was jointly owned by Jacob Kline and John S. Branner, who were engaged in business together under the firm name of Branner & Kline. On the date mentioned Jacob Kline died intestate, leaving as his only heirs Josie Kline, now Josie Webb, who was then six years of age, and another daughter, Millie Kline. On October 15, 1875, Branner was appointed administrator of the estate of Jacob Kline, and continued to act in that capacity until December 29, 1880, when he made what is termed his final report, to which was attached an affidavit that all the debts of the estate were fully paid and that the estate was fully administered. His final account was accepted and he was discharged by the probate court as administrator.
It further appears that on January 10, 1876, he undertook to administer the estate of the firm of Branner & Kline, as surviving partner, and under direction of the probate court gave a bond, as surviving partner, and that he made an inventory and filed accounts as such surviving partner. In the inventory of the partnership property the lot in question was described. On January 6, 1877, he was appointed and qualified as guardian of the persons and estates of Josie Kline and Millie Kline, and continued to act as such guardian during their minority. On March 26, 1881, Branner applied for and obtained an order of the probate court authorizing him to sell the lot in question for the payment of partnership debts. On December 13, 1881, he reported that he had sold an undivided half of the lot to Otto Kuehne for $ 3,000. An order was entered approving the sale and directing that a deed be executed to Kuehne. A deed was executed, purporting to convey one-half of the lot, and on the following day Kuehne in turn conveyed the same interest to Branner. At the time of the sale of the lot the plaintiff was an infant about twelve years of age. Shortly after the making of the deeds Branner erected a building on the lot, the cost of which was estimated at from $ 7,000 to $ 10,000. At the time the deed was executed from Kuehne to Branner there was a small frame building upon the lot, of little value, but since the erection of the larger building in 1881 the rental value of the lot has been $ 210 per month.
In 1891 an account was filed by Branner, as guardian of the person and estate of the plaintiff, in which it was stated that she was indebted to him as guardian in the sum of $ 4,406.96, and which the court made a charge on the estate inherited by the plaintiff from her father. An order was entered discharging Branner and his sureties from liability by reason of his guardianship, but in the order there was an exception of any property or estate inherited by the plaintiff and her sister or either of them in which Branner owned or owns any interest as surviving partner of Jacob Kline. In 1892 another report, designated as the final report as guardian of the children of Jacob Kline and as surviving partner of the firm of Branner & Kline, was presented to the probate court, and on April 20 of that year this report was examined by the probate court, the plaintiff being present in person and represented by attorneys. During the consideration of this account the plaintiff and her attorneys objected to various items and resisted the allowance of the account.
The court found that there was due from the plaintiff to her guardian, Branner, the sum of $ 1,146.52, and that there was due from Branner, the guardian, to Millie Kline the sum of $ 3,350.44, and directed that when these amounts were paid, as well as some allowances of attorney's fees, and costs, that Branner, as guardian and surviving partner, should be discharged from his trust, and that the sureties upon his bond should be relieved from liability by reason of the trust. Shortly after the making of this order the plaintiff paid the amount found by the probate court to be due from her to the guardian to her sister, and this amount was credited upon the indebtedness of Branner to the sister. About two years after the settlement, this proceeding was begun.
The plaintiff claims that as one of the heirs of her father she inherited a one-fourth interest in the lot, and that the proceedings by which Branner obtained the conveyance of the lot were irregular and void, and he therefore took no title by virtue of those proceedings. On the part of Branner, it is claimed that the lot was sold under the direction and with the approval of the probate court, for a fair price; that the proceeds were applied to the payment of partnership debts; and that if the proceedings were irregular and void, they have been ratified and acquiesced in by the plaintiff to such an extent that she is estopped from asserting title to the lot. The trial resulted in favor of Branner, and the plaintiff brings the case here, alleging errors in the admission of testimony, in charging the jury, and in upholding the verdict.
The determination of the errors assigned rests to some extent on the testimony, and the defendant urges that the testimony has not been so preserved as to make the errors available. There is a recital in the case-made that it contains "the substance of all the testimony," and this we think is sufficient to warrant a review. Cavender v. Roberson, 33 Kan. 626, 7 P. 152.
From the testimony it appears that the proceedings for the sale of the lot were fatally defective, and the trial court instructed the jury that the orders of the probate court relating to sale and confirmation were absolutely void, and that the deeds from Branner to Kuehne and from Kuehne back to Branner were also void, and did not operate to transfer any title in the property to Branner. Aside from the invalidity of the proceedings preliminary to the sale, and at the sale itself, the act of Branner was in effect an attempt to purchase trust property from himself as trustee. While the deed was executed to Kuehne, it is clearly shown that the did not purchase the lot, did not pay any consideration for it and did not receive any consideration when he subsequently made a deed to Branner. He simply took the deed and executed another at the instance of Branner, and for his accommodation. While upon the face of the proceedings it appeared to be a bona fide sale and an actual transfer of the lot, it was only a device by which Branner undertook to indirectly acquire title...
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Windscheffel v. Wright
...were made to the trustee himself." 2 N.Y.S.2d loc. cit. 919. While not directly in point, the following cases are analogous: Webb v. Branner, 59 Kan. 190, 52 P. 429; Wiswell v. Simmons, 77 Kan. 622, 95 P. 407; Lindholm v. Nelson, supra; Crowley v. Nixon, 132 Kan. 552, 296 P. 376; Miller v. ......
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...136, 21 N.E. 193, 4 L. R. A. 218); Wilson v. Brookshire , 9 L. R. A. 792 (126 Ind. 497, 25 N.E. 131); and this court, in Webb v. Branner, 59 Kan. 190, 52 P. 429, added another to the list. Nor, in such cases, does the fact that the sale and purchase were bona fide and upon full consideratio......
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