Wood v. Staudenmayer

• Decision Date: 08 February 1896
• Docket Number: 8071
• Citation: 56 Kan. 399,43 P. 760
• Parties: B. C. WOOD, as Administrator of the Estate of L. R. Staudenmayer, sr., deceased, v. L. R. STAUDENMAYER, JR., et al
• Court: Kansas Supreme Court

43 P. 760

56 Kan. 399

B. C. WOOD, as Administrator of the Estate of L. R. Staudenmayer, sr., deceased, v. L. R. STAUDENMAYER, JR., et al

No. 8071

Supreme Court of Kansas

February 8, 1896

Decided January, 1896.

Error from Atchison District Court.

THIS is a part of the litigation which was before the court in Courtney v. Staudenmayer, and the facts out of which it arose are largely set forth in that case, to which reference is made (ante, p. 392). It was originally an action of partition between R. B. Drury, Charles J. Drury, and Robert McCrie, as plaintiffs, and L. R. Staudenmayer, sr., L. R. Staudenmayer jr., and three tenants, as defendants, and was instituted on July 8, 1887.

The plaintiffs claimed to be the owners of an undivided one-half of the land, and that the Staudenmayers owned the other undivided one-half of the same. Maria L. Courtney became a party to the action, and set up a mortgage executed by L. R Staudenmayer, sr., to William C. Courtney on July 17, 1858 and asked for a foreclosure of the same. The plaintiffs, as well as L. R. Staudenmayer, sr., averred in appropriate pleadings that the mortgage debt had been paid, and that the mortgage was not a lien upon the land. On March 27, 1890, a trial of the cause was begun before Hon. Robert M. Eaton, district judge; but it had not proceeded far before the plaintiffs asked and obtained leave to file an amended and supplemental petition, which caused a continuance of that branch of the case until the following term. A trial of the issue with respect to the validity and payment of the mortgage was allowed to proceed as between Maria L. Courtney, executrix, and her codefendants, the Staudenmayers, and the court found and adjudged that the mortgage debt had been fully paid and discharged, and that the mortgage constituted no lien upon the land. Upon a review, that judgment has been affirmed. (Courtney v. Staudenmayer, supra.)

The amended and supplemental petition filed by the plaintiffs alleged the purchase of the land from L. R. Staudenmayer, sr., the existence of the mortgage thereon executed by L. R. Staudenmayer, sr., to William C. Courtney, on July 17, 1858, and that L. R. Staudenmayer, sr., at the time of the sale of the land to Drury, represented that the Courtney mortgage had been fully paid and satisfied, and should have been so entered of record, but from oversight it had not been done. It was further averred that R. B. Drury, believing the representations to be true, purchased the interest of L. R. Staudenmayer, sr., in the property for $ 15,300 and made a payment of $ 2,500 upon the same. For the unpaid purchase-money R. B. Drury and his wife executed promissory notes, secured by a mortgage upon the same property, and subsequently R. B. Drury conveyed to C. J. Drury and Robert McCrie each an undivided one-third interest in the real estate purchased from L. R. Staudenmayer, sr., and each in turn assumed one-third of the mortgage indebtedness due from R. B. Drury and wife to L. R. Staudenmayer, sr. It was alleged that C. J. Drury and Robert McCrie purchased the land relying upon the representation that the Courtney mortgage debt had been paid and discharged, and the plaintiffs alleged that they had purchased an interest in the property with a view of subdividing it into small parcels and selling the same for a profit. They further averred, that they had promptly instituted the proceeding in partition, but that it had been delayed by the claim upon the Courtney mortgage, which appeared to be in full force and effect as a lien upon the land. They alleged that they had made a demand upon L. R. Staudenmayer, sr., that he should satisfy the claim or cancel the contract of sale and the accompanying papers, but that he still persisted in claiming that the mortgage had not been for many years a lien or incumbrance upon his interest in the land conveyed by him to R. B. Drury, and he promised speedily to have the controversy relating thereto settled and determined. They averred that he had failed to take any steps to settle the controversy, that it had become further involved by a claim of an attorney's lien thereon, and the property had been greatly depreciated in value during the delay, so that the land was not available for the purpose for which it was purchased, and, therefore, that they were entitled to rescind the contract. To that end they tendered deeds duly executed releasing their interest in the real estate, and asked the court to decree the contract of purchase canceled and annulled, and the notes and mortgage executed by R. B. Drury and wife to be adjudged null and void, and surrendered into court; and further, they asked to recover a judgment against L. R. Staudenmayer, sr., for the sum of $ 2,500, with interest thereon.

L. R. Staudenmayer, sr., answered, setting forth the notes and mortgage executed by R. B. Drury and wife, asking for a personal judgment against them in the sum of $ 12,800, and for a judgment against Charles J. Drury and Robert McCrie, each for one-third of the mortgage debt, it being alleged that each had assumed the payment of one-third of the same, and for a decree of foreclosure. He also asked that Anna M. Drury should be made a party to the action, in order that his rights might be made complete. In a supplemental answer filed by L. R. Staudenmayer, sr., on June 24, 1891, he alleged that on November 29, 1890, it had been duly determined in that court that the Courtney mortgage had been fully paid, satisfied, and discharged, and that the judgment was then in full force and effect.

Replies were filed and the issues closed. A trial was had before the court without a jury. Conclusions of fact and of law were filed on July 11, 1891, in which the court found that the Courtney mortgage was duly executed and recorded, and was still unsatisfied on the record; that no payment upon the notes secured thereby had ever been made, except three small interest payments made in 1860, which were indorsed on the notes. It was also found that, at the time of the purchase, L. R. Staudenmayer, sr., represented to R. B. Drury that the Courtney mortgage had been paid; that he had paid it, and that he had a receipt or something to show payment among his papers. It was further found, that by reason of the misrepresentations and misconduct of L. R. Staudenmayer, sr., the contract of purchase should be rescinded, and it was so adjudged. The plaintiffs were required to convey the property to L. R. Staudenmayer, sr., and the notes and mortgage executed by R. B. Drury and Anna M. Drury were annulled and canceled; and the court further gave judgment to the plaintiffs against both of the Staudenmayers for the sum of $ 2,965.79, that being the amount of the payment made by R. B. Drury to L. R. Staudenmayer, sr., together with the interest thereon. Staudenmayer complained of these rulings, and, after having brought the case to this court for review, he died, and since that time the proceedings have been revived in the name of B. C. Wood, administrator of the estate of the deceased. The opinion herein was filed February 8, 1896.

Judgment reversed.

C. D. Walker, and J. L. Berry, for plaintiff in error; Waggener, Horton & Orr, of counsel.

W. W. & W. F. Guthrie, for defendants in error R. B. and Chas. J. Drury and Robert McCrie.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

A question of jurisdiction has been presented, based on what is alleged to be the absence of necessary parties. It is contended that the presence of L. R. Staudenmayer, jr., and Anna M. Drury is necessary to a...