291 F. 293 | 8th Cir. | 1923
(after stating the facts as above). Both parties agree that the sole controversy is over the validity of the deed from S. H. Standart, assignee of Crippen, Lawrence & Co., to Benjamin Jenkins, executed on August 31, 1894, and filed for record in the proper office of the register of deeds of Butler county, state of Kansas, on September 25, 1894, and duly recorded, and the deed of J. H. Crippen, who succeeded Standart as trustee under the assignment tp H. M. McConnell, executed on February 19, 1902, and duly filed for record in Butler county, Kan., on September 15, 1902. These conveyances were authorized and approved by the court of the state of Colorado in which the assignment was administered,, and the land in controversy had been listed by the assignee as a part of the estate of his assignors. On behalf of appellant it is claimed that these deeds are absolutely void, not having been approved by the district court of Butler county, Kan., the county in which the land was situated, as required by the laws of the state of Kansas, and for that reason the title offered by interveners to appellant is not a marketable title, as provided in the contract between the parties.
As the land is situated in the state of Kansas, the law of that state, as construed by its Supreme Court, no doubt controls. This is not controverted by counsel for appellees, nor is it disputed that under the statutes of that state a sale of lands lying in that state, held by an assignee for the benefit of creditors under an assignment, executed and administered in the court of another state, can only be made on an order by and with the approval of a court of competent jurisdiction of the state of Kansas. Thompkins v. Adams, 41 Kan. 38, 20 Pac. 530; Watson v. Holden, 58 Kan. 657, 50 Pac. 883; McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834. This action was instituted August 1, 1918, within a few days of 24 years after the execution of the deed. Ex parte affidavits were presented to the court at the hearing, showing that the parties under whom the interveners claim title had been in open, notorious, and continuous possession under the deeds now attacked in this case for over 20 years.
Leaving out of consideration these affidavits, there is a presumption of law that possession follows the legal title. The first deed having been executed by Standart to Jenkins in 1894, and the deed from Crippen, trustee, successor to Standart in the assignment, on February 19, 1902,, more than 15 years have elapsed since those under whom the interveners claim title are presumed to have been in possession under their deeds. The statute of limitation of Kansas for the recovery of real property is 15 years. Section 6905, Gen. Stat. of Kansas 1915. Section 6906 of the statute permits one entitled to bring an action for the recovery of real property, who may be under legal disabilities when the cause of action accrues, to bring his action within 2 years after the disability is removed. Infancy is, of course, a disability, within the meaning of section 6906, and so is insanity, and has been so held by the Supreme Court of Kansas. Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745.
The sole question now to be determined is: Was the title of the interveners to the land in controversy a marketable title? In 39 Cyc. 1454, a marketable title is defined as:
“The rule that the title must be free from reasonable doubt does not require a title absolutely free from all suspicion or possible defect, but only requires a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. The fact that in the action between the vendor and the purchaser the court may consider the title good does not render it marketable. In the absence of an express stipulation therefor a marketable title does not mean a title which satisfies the purchaser or which his attorney pronounces marketable.”
“Where the probability of litigation ensuing against the purchaser In respect of the matter in doubt is considerable; or, as it was put by Alderson, B., where there is a ‘reasonable decent probability of litigation.’ The court, to use a favorite expression, will not compel the purchaser to buy a lawsuit. If there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the title will be deemed unmarketable.”
Again on page 769 that author says:
“It is impossible in the nature of things that there should be a mathematical certainty of a good title. Such a thing as absolute security in the purchase of real estate is unknown. But a bare possibility that a title may be affected from certain causes, when the highest possible evidence of which the nature of the ease admits, amounting to a moral certainty, is given that no such cause exists, does not render the title doubtful. The purchaser cannot demand a title absolutely free from all suspicion or possible defect; nor that he be guaranteed against any trouble on account of the title. He can simply require a title such as prudent men, well advised as to the facts and 'their legal bearings, would be willing to accept. The doubts must be such as will affect the market value of the estate. They must not be made up for the occasion, based on captious, frivolous, and astuté niceties; they must be such as would induce a prudent man to hesitate in accepting a title affected by them. What matters of law or what matters of fact are sufficient to make a title so doubtful as to be unmarketable cannot ,be indicated by positive rules. Facts or questions which present no difficulties to one judicial mind may, in the opinion of another, raise insuperable objections to the title. It is obvious that the existence of a ‘fair and reasonable doubt’ as to the title must depend upon the capacities of the judge to whom the question is addressed. ‘Practically the judge acts upon his own doubts.’ It has been said that the title which a purchaser will be required to take should be, like Caasar’s wife, free from suspicion, but that the purchaser will not be relieved on account of possibilities of defects, or mere suspicions of faults ending only in suspicion. The doubt must be ‘grave and reasonable.’ ”
It is true that a title which is likely to expose the vendee to litigation is not a marketable title; but, as shown by authorities above cited, the fact that there is a bare possibility that a title may be affected, when the highest evidence of which the nature of the case demands, amounting to a moral certainty, is given that no such cause exists, does not render the title doubtful. The doubt must be at least reasonable. In this case who can question the title of the interveners? It is claimed' on behalf of the appellant that any creditor of Crippen, Lawrence & Co. can maintain an action affecting the title.
We cannot sustain this contention. Such an action could only be instituted by the assignee or trustee appointed by a court of competent jurisdiction. As the assignee or trustee has been discharged over 18 years, it would be necessary to apply to the court in Colorado in which the assignment proceedings were pending to open up the estate and appoint an assignee, with directions to institute proceedings in the proper court in Kansas. But in such an action he would be clearly barred by the statute of limitations and laches, if the suit is instituted in a court of equity, as it would likely be to cancel the assignee’s and trustee’s deeds.
More than 15 years having elapsed since the execution of the deeds, it would be barred by the statute of limitations of the state of Kansas.
“Where the assignee, under an assignment for the benefit of creditors, made a sale of real estate, in which all parties in interest acquiesced, the discharge of the assignee by the court, on the ground that he had fully performed his trust, will be deemed an approval of such sale, as against an objection raised more than 10 years later by a stranger to both the assignment proceedings and the title.”
In that case the record failed to show approval by the court of the sale made by the assignee. See, also, Estate of Potter & Page, 54 Pa. 465; Bole v. McKelvy, 189 Pa. 505, 42 Atl. 42.
It is contended that some of' the creditors may be minors or insane persons, and therefore under disability, within the meaning of the statute of limitations of Kansas. A creditor alone could not maintain an action to cancel the deed of the assignee and trustee. Assuming that such creditors should want proceedings to attack the title of the land instituted, such an action would not affect the title of interveners, for several reasons. That there can be no minors who can complain as creditors under the assignment is beyond question, the assignment having been made on September 18, 1893, nearly 30 years ago, and the final settlement and account of the trustee, as successor of the original assignee, in which the money received for the land in controversy was accounted for, was approved by the Colorado court, in which the administration was pending on March 14, 1905, and the trustee discharged. As the substituted assignee or trustee would only possess the rights of his predecessors, he would certainly be barred. All the facts were known to his predecessors. There was no fraud practiced by any one; there was no concealment of facts; the most that could be claimed was that the parties, in ignorance of law, failed to have ancillary proceedings in a court of Butler county, Kan., and an order from that court to make the sale.
That there may be a bare possibility that some creditor of the estate might have been at the time an insane person cannot be considered as reasonable. If there had been such a creditor, his claim would have had to be filed by a guardian, and, if that had been done, it would have been an easy matter to have established it from the files
The authorities mainly relied on by counsel for appellant are Wesley v. Eells, 177 U. S. 370, 20 Sup. Ct. 661, 44 L. Ed. 810, and Canaday v. Miller, 102 Kan. 577, 171 Pac. 651. In our opinion neither of them are in point. Wesley v. Eells was an action for specific performance, and the court held that the granting of specific performance is discretionary and will be denied if inequitable. The facts in that case were: It had been decided by one of the trial courts of South Carolina, the state in which the lands in controversy were situated, that the title to land from the state paid for with a certain scrip of that state, which had been illegally issued and therefore invalid, was absolutely void. This, the court held, created such a doubt as to the title that it might work an injustice to the purchaser. The court said:
“Again, it is a settled rule of equity that the defendant in a suit brought for the specific performance of an executory contract will not be compelled to take a title about which doubt may reasonably exist or which may expose him to litigation. * * * And, speaking generally, a title is to be deemed doubtful where a court of co-ordinate jurisdiction has decided adversely to it or to the principles on which it rests.”
Canaday v. Miller was also an action for specific performance. The contract in that case provided that the title was to be satisfactory to the vendee. The court held:
“While this would not justify, a captious refusal or arbitrary objection to the title, an objection to the title based on the opinion of able lawyers that the title is not merchantable under the laws of Arkansas, where the land in dispute is situated, is not arbitrary.”
Plaintiff’s title in that case rested on 7 years’ payment of taxes under color of title, under the laws of the state of Arkansas, and a decree of confirmation of his title by a chancery court of that state. That decree was not on personal service, but on publication of a warning order. Under the laws of Arkansas, such a decree is not final, but may be opened within 3 years. Less than one year had elapsed at the time the suit was instituted, and the court held, and no doubt properly, that the decree of confirmation was not yet impervious to attack, and was in effect only interlocutory, and therefore plaintiff’s title was not such as would justify the court to grant specific performance.
In our opinion, the decree was right, and must be affirmed.