105 Kan. 305 | Kan. | 1919
The action was one to cancel and set aside an instrument described as a deed for gas, and to quiet plaintiffs’ title to a tract of land owned in Allen county. The petition, after stating the ownership of the plaintiffs, alleged that on the 8th day of March, 1907, they executed and delivered the instrument to the Iola Portland Cement Company, a copy of which was attached to the petition; and that the instrument has never been recorded by the grantee or its successor, the Lehigh Portland Cement Company, and is held by defendant unrecorded.
The grounds specifically alleged for canceling the instrument were: First, that the instrument had been altered and changed by the grantee or its agents, without the consent of the plaintiffs, and with intent to deprive plaintiffs of their oil rights in the land (the alleged alteration being the interpolation of the words “oil and” before the words “natural gas”), so that the instrument, after being altered, purported to convey, not only the natural gas, but also the oil rights in the land. Second, that after using the lands for the purpose of obtaining natural gas, the grantee and its successor had abandoned the premises for more than ten years, and had failed and neglected to reconvey the premises as provided in the instrument, and it was alleged that the instrument constitutes a cloud upon plaintiffs’ title.
The defendant demurred generally to the petition, and specially on the ground that two or more causes of action were improperly joined. The demurrer was overruled, and defendant answered,, admitting its interest as the successor of the original grantée, claiming to be the owner and holder of the conveyance and of the rights incident to the use and production of oil, as well as natural gas, and alleging that it was continuously in the ownership and possession of the oil and gas rights in the land. The other allegations of the petition were denied. The issues having been joined, the court called a jury, and submitted to them certain questions of fact to aid the court in determining the legal questions involved.
Before the case was submitted to the jury, and after the evidence was closed, the plaintiffs called the county assessor who
The jury was unable to agree upon the questions, and was thereupon discharged, the court reserving the questions of fact, as well as the questions of law, for determination at a subsequent time. Later, and at the same term, the court made findings of fact. The court found that neither the defendant nor the Iola Portland Cement Company had caused the deed to be recorded down to the time of the commencement of the action; that from the date of the instrument to the commencement of the action, neither the Iola company nor the Lehigh company had listed the instrument for taxation in Allen county; and that the defendant, and also the original grantee, had refused a demand, made by the plaintiffs prior to-the commencement of the action, to cancel the deed. The court expressly stated that no finding wás made as to the issue respecting the alleged alteration of the instrument, but held that, inasmuch as the grantee and its successor, the defendant, had failed and neglected to record the instrument, and had • “likewise failed and neglected during such period to list for taxation the property” conveyed by the instrument, it was void at the time of the commencement' of the action, and, being void, the plaintiffs were entitled to have it canceled and their title quieted. A motion for a new trial was overruled, and the defendant appeals.
The plaintiffs insist that defendant's abstract and brief should be stricken because the defendant has changed the title of the case in this court, and reversed the parties, so that it appears upon the docket as an action brought by the Lehigh Portland Cement Company, as plaintiff, against the owners of the land, as defendants, contrary to the express provisions of section 579 of the code of civil procedure (Gen. Stat. 1915, § 7483), which reads:
“A case appealed shall be docketed in the appellate court with the same title that the case had in the trial court, except that the parties shall be designated as appellant and appellee.”
The first four specifications of error are based upon the contention that there were two causes of action, one going to the validity of the instrument, and the other relating to the possession of the property: It was a suit to quiet title for a number of reasons, and there was nothing inconsistent in the grounds alleged. The plaintiffs could rely upon'the ground of abandonment, and at the same time claim that the lease had been fraudulently altered. Only one instrument was involved, although it was alleged to be void on two separate grounds; and there was nothing to prevent the plaintiffs from showing both. (Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530.) The demurrer was rightly overruled.
The fifth assignment of error relates to the sufficiency of plaintiffs’ evidence tending to show an alteration of the instrument. That issue was not passed upon by the trial court, and the error complained of needs no further comment.
It was within the discretion of the trial court to permit the plaintiffs to open up the case and introduce additional evidence after they had once closed their case. Matters of this kind are always within the sound discretion of the court. The court might have refused it without abuse of discretion.
The instrument in question, reading as the plaintiffs contend that it should read, expressly grants, bargains, sells and conveys to the grantee, “its successors and assigns, all the natural
“That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves: Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.”
In Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. 1002, it was said:
“The lease does not become void by the mere failure to record it, but only when there is the additional delinquency of omitting to list it for taxation. If it is recorded as the statute enjoins, the taxing officer has an opportunity to find and assess the property conveyed by it; and if the owners omit to record the lease and also omit to list it, and thus bring it to the attention of the taxing officials within the time fixed for listing property, the lease then becomes void, and may be so declared by the court at the instance of any interested party.” (p. 14S.)
In that case the owner,of the minerals failed to record the lease within the prescribed time, and also failed to list the property for taxation,- and the judgment, deciding that it was void, was affirmed. Here, likewise, it took not only the failure to record the lease within ninety days from its execution, but also the failure to list it for taxation. The petition alleged the' failure to record, but did not allege the failure to list for taxation. At any time before the case was closed, and even after the judgment, it was within the discretion of the court to allow the plaintiffs to amend their petition to conform to the facts. Technically, without an amendment to the petition, evidence that the defendant had failed to list the minerals for taxation was not within the issues; but, in the absence of-any claim that defendant in fact had listed the property for taxa
It is said, however, that upon a new trial the defendant “would be enabled to avail itself of all defenses at hand, as, for instance,” that the property was included in other properties returned for taxation by its predecessors. There was nothing to prevent the defendant from introducing testimony of this character, unless it was taken by surprise and was not able to procure its evidence at that time. If that were the situation it was the duty of the defendant to ask for time in which to obtain the testimony.
It is suggested that the following questions would all be available as defenses if a new trial should be granted: (1) Is the action barred by the statute of limitations, or are the plaintiffs estopped to maintain the action? (2) Is the instrument void, or simply voidable? (3) What are the defenses in fact and in law available to defendant, based upon section 11280 of the General Statutes of 1915 ? These present nothing but questions of law which defendant should have presented to the court, or, if prevented by any reason from presenting them at the time of the trial, it should have asked a postponement.
Defendant’s contention that, following the rule stated in Newby v. Myers, 44 Kan. 477, 24 Pac. 971, the finding with respect to the failure to list for taxation, being outside the issues, is a nullity, is sufficiently answered by the statement that the issues must be considered as enlarged, and the petition as amended, for the reasons already stated.
There was nothing irregular in the refusal of the court to continue the trial after the jury had disagreed on the findings
That the new evidence was not within the issues, as the pleadings stood, may be conceded. The failure to offer evidence in rebuttal, or to make a request and showing for further time to procure evidence, or to make some showing, either to the trial court or to this court, that its rights were prejudiced, preclude us from holding that defendant is entitled to another trial.
The judgment is affirmed.