92 Kan. 122 | Kan. | 1914
'The opinion of the court was delivered by
The plaintiffs sued to recover from the defendants, Wilbur & Ross, possession of the first floor of a certain building known as the Doty building, and ■sued the other defendants in another action to quiet title to certain real estate known as the Tabor property. The two cases were consolidated. The pleadings ■of the plaintiffs alleged in substance a long and complicated course of dealing between M. R. Doty and TI. D. Shepard, going back to 1886; an assignment to Shepard for the benefit of creditors, certain property taken by him to be held as security for loans and advancements, an agreement to arbitrate, an arbitration ■of all their matters of difference, an agreement to carry such arbitration into effect, that the report by the arbitrators was grossly wrong and fraudulently and corruptly made; that the agreement to carry it into effect was never carried out; that Shepard retained the real estate, including that involved herein, and continued to collect and retain the rents and profits thereof, which had more than paid the indebtedness of the plaintiffs; that H. D. Shepard’ died in April, 1904; that defendants Nellie P. Shepard and Emma D. Price, his daughters, and D. S. Shepard, his wife, had wrongfully collected the rents and profits for the past three years; that the plaintiffs were in equity the owners and •entitled to immediate possession, and praying for an ¡accounting of the true indebtedness of the plaintiffs to .H, D. and D. S. Shepard and of the rents and profits,
The referee found among other things that at the date of the assignment Doty was the owner of the property involved herein, that the Tabor property was foreclosed upon in 1889, H. D. Shepard being the purchaser and having the same conveyed by sheriff’s deed to L. A. Dutton, who conveyed to Nellie P. Shepard, no consideration having passed from either, all of the money being paid by H. D. Shepard; that the Doty store building was foreclosed upon in 1891, Shepard purchasing at sheriff’s sale, deeding the same to his wife, D. S, Shepard; that about April, 1895, Doty and Shepard entered into an arbitration agreement to determine the differences pertaining to all property affairs in controversy between them of every kind and character; that the award was made and signed and accepted by the parties, and thereafter an agreement in writing was entered into between the Dotys-and Shepard and wife and another to carry out the ward. That all of the instruments provided for in such agreement were executed and delivered to two of the trustees, but after-wards returned because it was said that neither side would carry out its agreement; that during all the years after the purchase of the property involved herein Shepard and his wife remained in possession and collected the rents, except that shortly before the death of H. D. Shepard, in 1904, M. R. Doty took possession of the room on the second floor of the Doty building and afterwards the remaining rooms on that floor without the knowledge or consent of the Shepards, and m
As a conclusion of law the referee found that the arbitration and award merged and extinguished all claims embraced therein, and that the plaintiffs’ only remedy is the enforcement of the latter; that defendant Nellie P. Shepard is entitled to a judgment for $310 for occupancy of the Tabor property, and defendant D. S. Shepard to judgment for $480 for the use of the second story of the Doty building. The plaintiffs moved for leave to amend their petition to conform to the facts proven and make it an action to execute the contract between the plaintiffs and defendants to carry the award into effect, for an accounting and judgment that the same had been fully paid, and that the plaintiffs have their title quieted and for costs and other relief, which motion was denied. The referee delivered
We think this construction of the plaintiffs’ pleadings is entirely justified by the language used in their various allegations, but their first complaint now is that they were not permitted to amend to conform to the facts, and in effect to conform to the views of the referee and treat the arbitration as binding. It seems fairly clear that although the award and contract made in pursuance thereof were not carried out, nevertheless the real estate in question was retained by the Shepards as security for the debt owed by the Dotys for money advanced by Shepard. And so long as this situation continued it would seem that under proper pleadings the plaintiffs should be entitled to show that the indebtedness had been extinguished and that they were entitled to a reconveyance of the real estate or to have their title quieted. The fault for not carrying out the arbitration and the agreement appears to be as much on one side as on the other, and while the failure to carry it out does not change the status of the transactions and the obligations fixed thereby, neither should it prohibit either party from showing a subsequent course of dealing and the rights acquired in consequence thereof.
There is nothing in the findings to indicate that Shepard repudiated the trust or did anything to change his status as creditor of the Dotys for the sums advanced when he bought in the properties and placed the
When the referee’s report came in and the motion was made for leave to amend to conform to the facts the court had all the parties before it, the action was equitable in its nature, and had the leave, been granted the end of long-protracted litigation might have been reached. But under the settled rule the matter rests in the discretion of the trial court, and its' ruling must be deemed final unless it appears that such discretion was abused, and the circumstances do not justify such holding. However, as the parties had all assumed the attitude, as found by the referee, of treating the arbitration as in all respects valid and binding, notwithstanding the allegation of its invalidity found in the plaintiffs’ petition, we see no reason why the case should not now be treated and regarded accordingly. The award and the subsequent contract make it plain that the rights of the parties thereto were fixed and determined at the time, and starting with such determination as a basis no reason is apparent why the rights subsequently accruing may not be finally adjusted in this action, and this regardless of any, question of amending the petition. The plaintiffs, charging the award to have been fraudulent, nevertheless attempted
A parcel of land over which there is no contest was •covered by the judgment which in that respect will be affirmed.
The judgment in other respects is reversed and the cause remanded with directions to determine the rights of defendant Nellie P. Shepard in the property claimed by her, and render such judgment as such determination together with the findings of fact heretofore made .shall warrant.