Western Grocer Company v. Alleman

• Decision Date: 08 January 1910
• Docket Number: 16,287
• Parties: THE WESTERN GROCER COMPANY, Appellant, v. P. B. ALLEMAN (Defendant) and v. MAY ALLEMAN (Interpleader), Appellees
• Court: Kansas Supreme Court

106 P. 460

81 Kan. 543

THE WESTERN GROCER COMPANY, Appellant, v. P. B. ALLEMAN (Defendant) and v. MAY ALLEMAN (Interpleader), Appellees

No. 16,287

Supreme Court of Kansas

January 8, 1910

Decided January, 1910.

Appeal from Miami district court; WINFIELD H. SHELDON, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEEDS--Failure to Record--Innocent Purchaser--Consideration. The grantee of a deed from one who has no title to the tract described, but who appears by the record to be its owner because a deed previously executed has not been recorded, is not entitled to the benefit of the recording act as an innocent purchaser, where the only consideration for the conveyance to him is the discharge of an antecedent indebtedness.

2. DEEDS--Same. The application of this rule is not prevented by the fact that the grantee surrenders a past due unsecured note to its maker, where such maker is a party to an action in which the deed is held to pass no title.

3. EVIDENCE--Review--Attachment--Dissolution. The evidence, being wholly in writing, examined and held to require the denial of two motions--one to dissolve an attachment, and the other to release property from its operation.

G. W Littick, for the appellant.

David F. Carson, James F. Getty, and F. D. Hutchings, for the appellees.

OPINION

MASON, J.:

In 1905 P. B. Alleman engaged in the grocery business in Kansas City, Kan. In November, 1906, he traded his stock for a tract of land in Miami county, the owner of which executed a deed to him, which was not recorded. A few days later the same grantor executed a deed to Alleman's wife, which was made of record. At the time Alleman owed $ 588.15 to the Western Grocer Company, from which he had purchased most of his goods. The company sued him on its account, and attached the land, the attachment affidavit alleging fraud in the creation of the debt and in the attempted disposal of the debtor's property. Mrs. Alleman interpleaded and claimed the land, asserting that the deed had been made to her in satisfaction of a note for $ 1500 which her husband had given her for a loan of that amount in January, 1905. The trial court sustained a motion of the defendant to dissolve the attachment on the ground that the affidavit therefor was untrue, and also sustained a motion of the interpleader to release the land from the attachment on the ground that she was its owner. The plaintiff appeals from both orders.

The case was tried almost wholly upon affidavits. The deposition of one witness was used, but no oral testimony. Therefore "the case is presented here in practically the same aspect as the one which it bore in the district court" and the evidence "may be canvassed in the same manner as if the proceedings were original in this court." ( Bank v. McIntosh, 72 Kan. 603, 610, 84 P. 535.)

There was a conflict of testimony with respect to the circumstances of the transfer of the title of the land. The former owner swears that he made the trade with Alleman about November 15, 1906, exchanging the land for the stock of goods; that he at once took possession of the stock; that the deed was executed and delivered to Alleman, who said nothing then or later about owing his wife money or selling the land to her; that a few days afterward Alleman returned and asked him to execute a new deed naming Mrs. Alleman as grantee, which he did, without the old deed having been returned and without any reconveyance having been made to him. This testimony was corroborated in detail by E. H. Shore, the agent who represented the landowner in the transaction, and also by the agent who acted for Alleman. If it is true, then the title to the property passed to Alleman and remains there. His conduct might be deemed to effect a transfer to his wife by estoppel, as against himself, but this principle can not operate against the plaintiff. The only evidence offered to contradict these three witnesses was that of the defendant, in these words:

"Affiant states that he got an opportunity to trade said stock and fixtures to one C. J. Burtner for the farm herein attached and made the deal, completing the same in the office of George W. Littick, plaintiff's attorney, who was present and overheard the conversation relative to said sale. That he required the said Burtner to make the deed to his wife, V. May Alleman, and when the same was delivered to her she surrendered the note above set out."

"That the deed mentioned in the affidavit of E. H. Shore's was placed in escrow in the hands of David F. Carson [the attorney of Alleman in the litigation] and that when he [Alleman] saw his name as grantee therein he refused to accept it and that Shore then went to the wife of Burtner and to Burtner and obtained a new deed wherein the name of V. May Alleman was inserted as grantee."

No explanation whatever is offered as to the character of the "escrow," or as to what became of the first deed. The defendant's affidavit can hardly be regarded as a denial of those of the plaintiff's witnesses, which must be taken to be true, as there is really nothing in the record to discredit them. The affidavit of Mrs. Alleman on the subject of the land transaction is a mere conclusion, without probative value. It reads:

"This affiant states that she received the deed to said real estate in good faith from C. J. Burtner and wife on the 20th day of November, 1906, and that C. J. Burtner and wife were the then owners of the same. That she paid therefor a valuable consideration, to wit, the sum of $ 1500."

Assuming that her husband was in fact indebted to her and that when she took the deed and surrendered the note she had no knowledge that a deed had already been executed to her husband, she can not claim that the failure to record the first deed made her title good, for as the consideration for the conveyance to her was...