28 Kan. 174 | Kan. | 1882
The opinion of the court was delivered by
The plaintiffs in error, plaintiffs below, were-respectively the widow and children of A. R. Jeffers, deceased, and filed their petition in the district court of Doniphan county, seeking to set aside six several deeds executed by themselves separately to the defendant W. H. Forbes, and also a subsequent deed from W. H. Forbes to his co-defendant, B. N. Forbes.
The deeds from the plaintiffs were, respectively, a deed from the widow, four separate deeds from the adult children,.and a. guardian’s deed from the widow as guardian for the minor children. These deeds were executed at different dates and places, and all taken together conveyed a full title to the land described therein. To the petition defendants demurred on the ground that several causes of action were improperly joined, and also-that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiffs-now bring the question here for reexamination. The facts as disclosed in the petition are briefly as follows: On October 1,1875, A. R. Jeffers was the owner in fee simple of a tract of' about 310 acres in Doniphan county, Kansas, and on that day he and his wife executed a mortgage to the Phoenix Insurance company to secure the payment of $3,300, with interest at 10-per cent. They also executed a second mortgage on the land to the defendant W. H. Forbes, for $428. In August, 1878,.
The first ground of demurrer, as heretofore stated, is that several causes of action were improperly joined; and the contention is, that the setting aside of each of the six several deeds from the plaintiffs to the defendant W. H. Forbes'was a separate and independent cause of action, in which only the grantor in such deed had any interest. On the other hand, it is insisted that the plaintiffs together were the owners of a single tract; that but a single contract and agreement was entered into between them and the defendant. W. H. Forbes; that in pursuance of such single contract and agreement the various interests held by the several plaintiffs were conveyed to said Forbes; that if such contract and agreement was fraudulent and void, the plaintiffs had a joint interest in having it so adjudged, and all instruments executed to carry it into effect canceled and declared null and void; and that therefore there was but a single cause of action, in which all the parties plaintiff were interested, and to enforce which they may unite in a single action.
We think the contention of the defendants in error is correct, and that the ruling of the district court must be sustained on this ground. Sec. 35 of the code prescribes the
This does not assimilate an action in which the possession of the land owned in common is disturbed, for there each of the owners is alike interested in the possession. Jointly interested in the possession, they may jointly sue for any disturbance of their possession. But while jointly interested in the possession, they are not jointly interested in the title. Each owns his title separate and apart from the other — owns it absolutely and alone. The fact that they take by inheritance from a common ancestor, in no manner unifies their title. They hold by the same complete, separate and independent title as though each had purchased his interest from a different party. Nor does the case ■ assimilate that in which by a single instrument, as a tax or other deed, a cloud is cast upon the title to the entire tract, or one in which owners of different tracts unite in a single action to abate a common nuisance. In such cases there may be said to be a unity of action, a unity in the relief demanded; either the single cloud is to be removed from the title, or the common nuisance is to be abated. But here each party’s title is affected by a separate deed executed at a different time and place, and purporting to convey only his own separate interest, and the sole relief he can obtain is the cancellation of his own deed.
Again, it is not true that there was but a single contract or agreement in reference to the transfer of this land. The petition alleges that under threats, duress, etc., as above stated, the widow made her deed, and that under li/ce threats, duress, etc., and for the sake of saving some small pittance, if they could, for their mother, the other adult plaintiffs made their deeds. So that there is in fact no unity either in the cause of action or in the relief demanded. In 1 Daniell’s Chancery,
We conclude, then, that upon this ground-the ruling of the district court is correct, and must be affirmed.
We might stop here, but inasmuch as under § 292 of the code the court upon application of the plaintiffs must allow them to file separate petitions for the different causes of action, it is due to the parties that we should examine further, and determine whether the second ground of demurrer, namely, that the petition does not state facts enough to constitute a cause of action, is sustainable. Counsel for plaintiffs in error have filed an elaborate brief, citing many authorities upon the general proposition that a conveyance extorted by undue influences from a party in a dependent condition will always be set aside on application to a court of equity. Of this general doctrine there can be no doubt, and we shall concede its application in a general way to the case at bar. We shall not stop to inquire whether the allegations in the petition are sufficiently full in showing the circumstances of the duress, the nature of
. This doctrine also goes further in. this case. A part of the consideration was the cancellation of these mortgages, and before a decree can be rendered setting aside those mortgages
“That plaintiffs were not bound to make tender, is evident, first, from the fact that Forbes held no legally allowed, valid claim against the estate under the laws of Kansas; and second, because under the analogies of the law to say that Forbes is entitled to a tender for the amount- of the two mortgages, or anything else, is a contradiction in terms. His title, being void, falls like an empty sack, because it has nothing to support it, and it cannot support itself. The proposition that one who is detected in sucia a transaction, by which he has acquired no title, shall nevertheless be placed on the footing of one who has a good title, unless the money he claims to have expended in the perpetration of this fraud be paid, or tendered, to him by those he has so grossly injured, shocks the ordinary sense of right as much as it violates the analogies of the law.”
We cannot agree with these views in either respect. We know of no(reason why heirs may not convey real estate they’ have inherited from their ancestor, in payment and discharge of a debt due from the estate., even though, the same has never been allowed in the probate court. As between the heirs and the creditor receiving the conveyance, the transaction is valid and binding. Whether other creditors may intervene, and to what extent they may challenge such a conveyance, is not a question in this case. Neither is it true that the money that was due upon this mortgage was money paid in the perpetration or accomplishment of this fraud. There is nothing in. the petition which shows that these mortgages were not just and valid claims in the hands of Forbes against the land. They were just debts, and ought to have been paid. The
Without going further into detail, and for the reasons heretofore given, the judgment must be affirmed.