Grand Lodge of Independent Order of Odd Fellows v. Troutman, No. 15,353

No. 15,353 | Kan. | Jul 3, 1909

The opinion of the court was delivered by

Smith, J.:

The plaintiff makes eight assignments of error, all but two of which relate to the refusal of the-court to strike out portions of the answer. As the case •was decided by sustaining a motion of the defendants for judgment in their favor upon the pleadings the judgment can not be affirmed unless it is the correct legal conclusion upon the undisputed facts. The facts, as pleaded by the plaintiff are accepted to be true and the facts as pleaded by the defendants will be accepted only so far as they are admitted by plaintiff in its reply. Of course, the meaning and effect of written instruments admitted to have been made and executed is not matter of fact to be pleaded, but of construction by the-court. Nor, of course, will propositions of law pleaded by either as to when on the facts a cause of action arose or when the statute of limitations had run be regarded as facts. As the plaintiff, presumably, did not: in reply admit as true any portions of the answer which it had previously moved to strike out, we may safely disregard the six assignments of error relating to the denial of the motion and consider only the other two, really one, to wit, that the court erred in rendering judgment for the defendants on the facts so determined.

The plaintiff, then, and DeBoissiere, for the purpose ,of promoting a charity, sometime previous to May 11, 1892, entered into a verbal contract by the terms of which DeBoissiere was to convey the lands in question to trustees, to be designated, for the purpose of establishing and maintaining an Odd Fellows’ Orphans’ Home and Industrial School Association. The plaintiff, on its part, was to pay off to one Sears an equitable lien which he had on the land, and contribute the money to erect contemplated improvements on the land and support the children in the home, for every kind of expense except teaching. This contract was to be perpetual, and was so far executed that DeBoissiere executed the deed to designated trustees and the plaintiff paid on account of the Sears claim about $20,000, and about $15,000 for the making of improvements on the land. DeBoissiere died in France in January, 1894, and left his sister, Corrinne Martinelli, as his only heir. In October, 1894, the plaintiff passed the resolution and caused to be executed the quitclaim deed copied in the statement.

The defendants contend that by this deed the plaintiff not only conveyed all the rights, legal and equitable, it had in the lands in question, but that it also repudiated its contract to “support the children in the home, for every kind of expense except teaching.” The plaintiff, however, says that the instrument was intended only to convey to the trustees whatever interest, claim or title it may have acquired by the deed made by DeBoissiere and to give the trustees control of the Rome and scRool; tRat it was made only to settle disputed questions between the plaintiff and trustees, and that whatever it conveyed to the trustees does not avail •the defendants, as they claim title 'to the land neither through the trustees nor in privity with them, but at all times have claimed title in opposition to the trustees.

It is hard to conceive how language could be framed to express more clearly the intention of the plaintiff to convey all its rights in the land, of whatever nature they might be, to the trustees, thán the language here employed: '

, “ResoVved, that this grand lodge hereby rescinds all former action taken in connection with or pertaining to said orphans’ home.

“Resolved, that the grand master and the grand secretary convey by quitclaim deed under seal of this grand lodge to said corporation all interest, claim or title which it may have acquired by virtue of said deed made by Mr. DeBoissieré, or because'of any action heretofore taken by this grand lodge, concerning said home.”

The only action which the plaintiff pleads it had theretofore taken in reference to the land was the payment of the lien and the advancement of money for the improvements. It seems also that the following language forcibly expresses the intention of the plaintiff to bear no longer the expenses of the children in the home:

“Resolved, that this grand lodge does hereby renounce all claim to, interest in, control over, or connection with, said orphans’ home, further than to give it its blessing.”

We think this instrument, without ambiguity, assigned the rights of the plaintiff in the land and renounced all interest in, control over or connection with the orphans’ home, and declared its intention no longer to contribute to the support thereof as by its contract it had undertaken to do.

Let us assume, however, for the purpose of further examining the contentions of the plaintiff that the quitclaim deed did not amount to an assignment of its equitable lien upon the land for the money it had expended upon the contract: In 1896, nearly two years after the execution of the quitclaim deed, Corrinne Martinelli, the sole heir of DeBoissiere, brought a suit in the district court of Franklin county for the purpose of setting aside the deed from DeBoissiere to the trustees for the land in question and to determine the rights and liabilities of all the parties in. and to the land. The plaintiff, as well as the trustees, was made a defendant and summoned in the action. The plaintiff appeared and answered therein, and, in a pleading in the nature of a cross-petition, set up substantially the claim now relied upon, and asked that it be adjudged to have an equitable lien upon the land and that the land be sold to discharge the same. Thereafter the defendants herein secured a conveyance of the land in question from Corrinne Martinelli to them, and were substituted as plaintiffs in that suit in place of their grantor and filed an amended petition therein. Whereupon the defendants by leave of court filed a general demurrer to the amended petition, and the demurrer was sustained and judgment was rendered declaring that the plaintiffs therein had no cause of action against this plaintiff ; and thereafter no proceedings were had by which this plaintiff was in anywise made or continued as a party to said cause. The plaintiff contends that it was no longer .a party to the action.

The defendants, on the other hand, contend that the plaintiff continued to be a party in that case through all the subsequent proceedings therein, including the final judgment of the district court in favor of .the defendants, the proceedings in error in the supreme court, the reversal of the judgment of the trial court, the filing of the mandate in the district court, the hearing of the motion in the suit for judgment in favor of the plaintiffs therein in accordance with the mandate, the allowance thereof, and the rendition of such judgment. The record of the proceeding is pleaded by the defendants herein and is not traversed by the plaintiff, .and appears to sustain the contention of the defendants that the plaintiff had' notice of such motion and was represented by counsel at the hearing thereof and at the time of final judgment therein.

We will, however, again assume that upon the sustaining of the plaintiff’s demurrer to the amended petition and the judgment thereupon rendered the plaintiff was out of the case — was no longer a party thereto, and that the final judgment therein, rendered March 23, 1893, was not an. adjudication as to its claim of a lien on the land as against the defendants herein. However, we think it must be conceded that if Corrinne Martinelli had voluntarily dismissed her suit, after the filing of the plaintiff’s answer, it could have proceeded therein to have its rights under its cross-petition adjudicated, even over the objections of Corrinne Martinelli and the trustees.

The defendants contend that The plaintiff’s cause of action, if it had any, arose immediately upon the bringing of the suit of Corrinne Martinelli, especially as the plaintiff had by its quitclaim deed, in part at least, repudiated its contract and refused longer to contribute to the support of the orphans’ home. The plaintiff, on the other hand, contends that its right to an equitable lien upon the land for money paid to discharge the Sears lien and to erect improvements on the land was contingent, upon the result of the suit to set aside DeBoissiere’s-. deed, and that its cause of action did not accrue until' the final determination of that suit — March 23, 1903. It claims this although it had, in 1897, commenced an. action against these defendants, the trustees and others, and set up practically the same claims here relied upon, and had thereafter dismissed the action without prejudice.

Two legal questions then remain: (1) When did the. cause of action of the plaintiff for the declaration. of a lien upon the land arise? (2) If this question be not involved in the first; was the pendency of the suit to set aside the DeBoissiere deed such a contingency as suspended the plaintiff’s cause of action for the lien until such suit to set aside the deed was determined?

It seems clear that at some time, if its rights had not' been assigned, the plaintiff was entitled to relief and had a cause of action for the money expended by it to promote and sustain the Odd Fellows’ Orphans’ Home. Mr. Freeman, the annotating editor ,of the- American State Reports, analyzes the cases in which relief is allowed against mistakes of law, dividing them into four classes. The fourth class is: “Where there is a mistake of law on both sides [of a contract], owing to which the object of the parties can not be attained.” (Note to Renard v. Clink, 91 Mich. 1" court="Mich." date_filed="1892-03-18" href="https://app.midpage.ai/document/renard-v-clink-7935755?utm_source=webapp" opinion_id="7935755">91 Mich. 1, in 30 Am. St. Rep. 460, 461, citing Champlin v. Laytin, 18 Wend. [N. Y.] 407, 417, Corrigan v. Tiernay, 100 Mo. 276" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/corrigan-v-tiernay-8009768?utm_source=webapp" opinion_id="8009768">100 Mo. 276, and note to Black v. Ward, 27 Mich. 191" court="Mich." date_filed="1873-04-29" href="https://app.midpage.ai/document/black-v-ward-6636065?utm_source=webapp" opinion_id="6636065">27 Mich. 191, in 15 Am. Rep. 171.) It is evident that DeBoissiere and the plaintiff thought when they entered into the contract and proceeded to the execution of the same that by their action they had organized or could organize the Odd Fellows’ Orphans’ Home and endow it with the lands and buildings through the medium of trustees in perpetuity. They were both mistaken as to the law, and owing to such mistake their object could not be attained. There was no fraud on either side. The mistake was mutual, and when it was discovered equity should restore to each party as nearly as possible what he contributed to the mistaken enterprise. It is also apparent that- whenever either party is entitled to withdraw his contribution to the common enterprise the other party is also entitled to withdraw his contribution thereto. Is this discovery made when one party is correctly advised as to the law and Brings an action to repossess himself of his contribution, or is it made when a court of competent and final jurisdiction has finally determined that the law does not permit the conveyance of the real estate for the desired purpose in perpetuity and therefore that the objects of the parties can not be attained?

The* plaintiff contends that its right to recover its contribution to the common purpose was contingent upon the right of the defendants, «as successors in interest to DeBoissiere, to recover his contribution, thereto, and although it was finally adjudicated in the suit brought by Corrinne Martinelli that the plaintiff in that suit really -held the title to the land at the very time of bringing the suit, and that the DeBoissiere deed was void, yet the right of the plaintiff herein to recover its contribution to the common purpose was contingent upon the final determination of that suit, and that the statute of limitations did not begin to run against its cause of action until,that suit was finally determined. Many authorities are cited by the plaintiff to sustain this contention. We have examined these authorities, and so far as they are in any way. instructive they relate to cases in which the former action, a determination of which forms the contingency upon which a later action depends, involves the determination of facts upon the existence of which a. cause of action in the later case depends, and such a relation exists between the parties to the two actions that the parties to the latter may rely upon the action of the parties' in the former.

The contention of the plaintiff is not consistent with its answer in the Martinelli case. It then recognized that it was called upon to assert and litigate any interest it had or claimed in or to the land. It responded by setting up the same claims now involved. In effect its answer was .a cross-petition asking to be reimbursed for its contributions to the original purpose which had augmented the value of the estate that Corrinne Martinelli sought to recover, and for which betterment she should repay the plaintiff if she recovered, the land.

The right of the plaintiff therein and of this plaintiff, as defendant therein, depended upon the legality or illegality of the DeBoissiere deed. It was purely a question of law, and not a single authority has been suggested, nor is it believed one can be found, where it has' been held that the pendency of one action^ wherein the sole question is as to what láw is applicable to certain facts, constitutes a contingency upon which depends the right to bring another action upon the same facts by a party not in privity with the claimant in the former action.

“A contingent claim is where the liability' depends upon some future event, which may or may not happen, and which therefore makes it wholly uncertain whether there ever will be a liability.” (Adm’r of Sargent v. Adm’r of Kimball, 37 Vt. 320" court="Vt." date_filed="1864-11-15" href="https://app.midpage.ai/document/administrator-of-sargents-estate-v-administrator-of-kimballs-estate-6577813?utm_source=webapp" opinion_id="6577813">37 Vt. 320, syllabus.)

(See, also, Stevens v. Stevens, 172 Mo. 28" court="Mo." date_filed="1903-02-18" href="https://app.midpage.ai/document/stevens-v-stevens-8014519?utm_source=webapp" opinion_id="8014519">172 Mo. 28, 36; Jorgenson v. Larson, 85 Minn. 134" court="Minn." date_filed="1901-12-27" href="https://app.midpage.ai/document/jorgenson-v-larson-7972062?utm_source=webapp" opinion_id="7972062">85 Minn. 134.)

The case last cited was based upon a claim for damages against the estate of a vendor for the breach of a contract to convey land and the refusal of- the widow of the vendor -to convey the one-third of the land vested in her by the death of her husband, she not having signed the contract to convey. The grantee had previously brought a suit to compel the specific performance of the contract as to* the one-third. After citing and approving the above definition of a contingent claim, the court said:

“Now, in this case, the plaintiff’s claim against the estate of his vendor for damages for the breach of the contract to convey the land became absolute when the widow refused to convey the one-third of the land vested in her by the death of her husband. He then knew that he could not compel specific performance as to this one-third, and that his only remedy was a claim for damages against the estate. Such claim was just as absolute when the widow refused as it was when the judgment in the action for specific performance was entered. The plaintiff, however, contends that he could not know until the decision in his equitable action whether the court would hold his acts of part performance sufficient to take his contract out of the statute of frauds and make it one that could be enforced; therefore it was contingent. Or, in other words, he could not know whether he could prove a valid contract to the satisfaction of the court until it actually decided the case. If this makes it a contingent claim, then every claim before judgment thereon is a contingent one, and need not be presented to the probate court, because the result of a lawsuit is always attended with uncertainties.” (Page 187.)

The contingency upon which the plaintiff’s right in this case depended was the validity of the DeBoissiere deed, and, paraphrasing the language of the above decision, the plaintiff’s claim to recover its contribution which had been used- for the betterment of the estate became absolute when Corrinne Martinelli, the heir of DeBoissiere, declared the deed invalid and brought suit to set it aside. The plaintiff herein was in no sense in privity with either of the other parties to the former action, but whatever claim it had was adverse to each of the others.

We conclude, therefore, that the plaintiff’s right of action became absolute upon the bringing of the suit by Corrinne Martinelli in 1896. The plaintiff evidently so understood it when it filed its answer in that action, and also when it brought the action in 1897.

If the plaintiff, being a party to the suit brought by Corrinne Martinelli in 1896, stood upon its cross-petition therein until the final determination thereof in 1903, it had an action pending in court, and the statute of limitations was tolled thereby until the final determination of the action. In such case, however, the final judgment in the case was adverse to it and renders the claim asserted in. this action res judicata. If, on the other hand, the plaintiff, by its demurrer and the ruling thereon, was discharged from that suit and was no longer a party thereto, then the final judgment therein was not an adjudication of its rights, but from the time it was discharged from the action it had no action pending and the running of the statute of limitations was no longer tolled. This ruling on the demurrer was more than five years before the commencement of this action, and five years is the longest limitation possibly applicable. The record before us arid the conduct of the parties leaves some uncertainty whether or not the plaintiff was dismissed as a party from the former action; but, as we have seen, this can make no difference in the result herein, and the contention of the plaintiff is therefore adopted and its action is held to be barred by the statute of limitations. The judgment is affirmed.

Benson, J., not sitting.