Withroder v. Wiederoder

• Decision Date: 06 March 1943
• Docket Number: 35784.
• Citation: 156 Kan. 570,134 P.2d 381
• Parties: WITHRODER v. WIEDERODER et al.
• Court: Kansas Supreme Court

134 P.2d 381

156 Kan. 570

WITHRODER v. WIEDERODER et al.

No. 35784.

Supreme Court of Kansas

March 6, 1943

Rehearing Denied April 17, 1943.

Syllabus by the Court.

Where in settlement of pending divorce action which was dismissed husband conveyed life interest in land to wife and remainder in fee to their children, children's interests became "vested" and were not affected by subsequent divorce action between their parents.

Where court granting divorce decreed to wife in fee-simple tracts of land including one which had been conveyed by husband to wife for life and remainder in fee to their children in settlement which brought about dismissal of prior divorce action, so much of judgment as decreed to wife an estate in fee simple in such tract was nugatory and did not affect children's interests.

A deed from one spouse to the other without passing title to a third party intermediary is valid.

In action to quiet title to land which was conveyed to plaintiff by his mother who only had a life interest, plaintiff could not claim title by "adverse possession", where there was no evidence that mother claimed adversely to her children, and after mother's death, plaintiff's brothers and sisters asserted their interest in the land. Gen.St.1935, 60-304, subd. 4.

Where judgment in divorce action decreeing to wife an estate in fee simple in tract in which children had vested remainder was nugatory, and wife conveyed such land to one child wife's deed conveyed nothing and other children were entitled to judgment quieting their title to an undivided interest in such tract.

Evidence warranted judgment quieting brother's title to land in which sister had an interest on ground that sister had promised to convey her interest in the land if brother would convey his interest in a tract of which sister was in possession and the brother performed his part of agreement.

A quiet title action commenced eight years after execution of contract for exchange of interests was not barred by limitations where plaintiff was in possession and hence could bring action to quiet title at any time at his convenience. Gen. St.1935, 60-306, 60-1801.

Possession alone will give right of action to quiet title. Gen.St.1935 60-1801.

1. In an action and cross-action to quiet title to land, in which it was shown that in settlement of a pending divorce action between husband and wife whereby the action was dismissed and the husband made a deed to a quarter section of land (the south half of which is the subject of this controversy) conveying a life interest therein to his wife and the remainder in fee to their five children, the interests of the latter thereby became vested and were not affected by a subsequent divorce action between their parents.

2. In a subsequent action for divorce prosecuted by the wife, she complained of the inadequacy and unfairness of the prior settlement. The court found all issues in the wife's favor, granted her divorce and decreed to her in fee simple four quarter sections of land, one of which had already been conveyed by the husband in the settlement which brought about the dismissal of the first divorce action. Held, so much of the judgment in the subsequent divorce action as decreed to her an estate in fee simple in the land in which the children had a vested remainder was nugatory.

3. The plaintiff, one of the five remaindermen, received a deed from his mother to 80 acres of the land in controversy, based on his mother's title as evidenced by the divorce decree. Held that his mother's deed conveyed nothing, and judgment in favor of his brother quieting his title to an undivided one-fifth interest was correct.

4. In the cross-action between plaintiff and his sister, the facts considered and held that she had agreed in writing to quitclaim her interest in the south 80 acres of the quarter section in consideration that he quitclaim to her his interest in the north 80 acres of the same quarter, and that he performed and she did not. Held that plaintiff being in possession under the equitable title predicated on his sister's written promise, judgment was properly decreed in his favor.

Appeal from District Court, Reno County; Franklin B. Hettinger, Judge.

Action by W. G. Withroder against Henry P. Wiederoder and Ida Mary Copas to quiet title to a tract of land, wherein defendants filed a cross-petition, in which they prayed to have separate undivided interests in the land involved quieted in them. From a judgment, plaintiff and last-named defendant appeal.

S. S. Alexander, of Kingman, for appellant and cross-appellee.

H. R. Branine, of Hutchinson (Walter F. Jones, C. E. Chalfant, and J. Richards Hunter, all of Hutchinson, on the brief), for appellee and cross-appellant.

DAWSON Chief Justice.

This was an action by the plaintiff against his brother and sister to quiet his title to 80 acres of Reno county land. The defendants filed separate answers and cross-petitions in which they prayed to have separate undivided one-fifth interests in the land quieted in them.

Plaintiff prevailed against his sister but failed against his brother. Hence this appeal and cross-appeal, to an understanding of which the material facts, in their least controversial aspects, must be stated at some length.

In 1903 the late Charles and Catherine Wiederoder, husband and wife, resided in Reno county, where they had amassed a considerable amount of property. They had three sons, W. G., Henry P., and Charles Edward, and two daughters, Anna May and Ida Mary,--all minors between nine and eighteen years of age at that time. Domestic discord developed between the parents and Catherine filed a suit for divorce. That suit was settled out of court and the action dismissed. In that settlement Charles Wiederoder agreed to convey a life interest in a quarter section of Reno county land (NW 1/4, 1-23-10 W) to Catherine his wife, and the remainder interest therein to their five children share and share alike. Charles executed a deed to the land accordingly and the deed was recorded July 7, 1903.

Apparently this effort to achieve permanent domestic peace did not succeed. On March 14, 1904, Catherine again filed suit for divorce. In her petition which contained proper allegations to state such a cause of action she also alleged that a prior action for divorce had been begun between the parties, and that she had signed an agreement with her husband, but that such agreement was not fairly made, and that the amount of property which she had received under its terms was less than one-twentieth of the value of the property which had been jointly accumulated by the efforts of herself and husband. She prayed for a divorce and for a division of the property standing in his name.

On issues joined the cause was tried and decided in Catherine's favor. In the award of property the judgment decreed to her four quarter sections of land in fee simple, one of which was the quarter section to which the husband had already made the deed referred to above,--conveying a life interest to Catherine and remainder in fee to the five children. The judgment and decree of divorce was rendered on March 8, 1905, and affirmed by this court without opinion on July 7, 1906. Catherine outlived her ex-husband for many years. The status of her title to the 80 acres now in dispute (S 1/2 N.W. 1/4, 1-23-10 W) was never a subject of any concern until 1926, when a lease of it for oil and gas was sought, and the prospective lessees informed her that the signatures of her sons and daughters and their spouses would be required. Catherine then expressed the opinion that their signatures were unnecessary, and to confirm her opinion she and her sons Henry and Charles examined the divorce decree of 1905 which recited that this land (and three other quarter sections) were awarded to her in fee simple. The trial court found that at that time, in 1926 or 1927, Catherine believed she owned the land in fee simple.

On February 1, 1928, Catherine executed warranty deeds to various tracts of land to each of her children,--the north half of N.W. 1/4, 1-23-10 W to her daughter, Mrs. Ida Mary Copas, and the south half of that quarter section, which is the 80 acres involved in this lawsuit, to the plaintiff W. G. Withroder. Deeds to other tracts were executed by Catherine to her daughter Anna May and to her other sons Henry and Charles at the same time. All these deeds were placed in the State Bank of Sylvia to be delivered to the named grantees after Catherine's death. She died in 1930, and the Sylvia banker delivered the deeds accordingly.

Following the death of Catherine plaintiff resided in Oklahoma, but he received all the farm rentals on the 80 acres in controversy, likewise the oil and gas lease delay rentals therefor. Part of the time his sister Ida collected the rents, paid the taxes, and paid over to plaintiff the balance. His brother Henry served in the same capacity and in the same way for part of the time.

Plaintiff's brother Charles and his sister Anna May at sometime conveyed or quitclaimed their interest in the 80 acres to plaintiff. In 1933, Ida Mary Copas mailed to plaintiff at Beaver Oklahoma, a deed with the request that he execute and return it to her. By its terms it would convey to Ida any and all interest plaintiff might have in the north 80 acres of the quarter section which had been the subject of the deed of 1903 to Catherine for life and remainder in fee to her five children. It was also, of course, the 80 acres conveyed to Ida by her mother's deed of 192...