106 P.2d 659 | Kan. | 1940
The opinion of the court was delivered by
This was an action to quiet title to an undivided 13/14 interest in a tract of farm land. In the petition plaintiff alleged she was the owner and in possession of the property; that defendants claimed some interest therein, the exact nature of which plaintiff did not know; asked that they be required to set up any claim or interest they had in the property, and that such claim be adjudged void. The defendant, Harvey D. McMickell, is the son of plaintiff. He filed no answer. The other defendant was Wm. D;. Miner. He answered, alleging that he is the owner of a. valid
At the trial some of the facts were stipulated: That the land in question was owned by Joe McMickell, husband of plaintiff, who died intestate in August, 1925, leaving his widow, the plaintiff herein, and seven children; that in April, 1926, quitclaim deeds of their undivided interest were executed by all the children, except one, to their mother. On January 27, 1932, a warranty deed, executed by plaintiff, was filed of record conveying “all our undivided interest in and to” the land in question to her son, Harvey D. McMickell. The records also show a mortgage, dated January 1, 1932, acknowledged January 14, was filed of record that day, executed by Harvey D. McMickell and wife to Wm. D. Miner, covering all the land in question, to secure the payment of a note for $2,400. It was stipulated that this sum of $2,400 was disbursed by paying taxes on the land, $306.58; to pay a mortgage to George M. Byal of $400, which had been executed by Harvey D. McMickell in 1929 on his share of the property; and $1,227 was paid to Harvey D. McMickell, out of which he paid a bank at Ness City $500 upon a judgment it held against one of the children. All of these payments, except one item to the register of deeds, were made between April 15 and 20, 1932. In the meantime there had been conveyed to Harvey D. McMickell the undivided interest in the land of one of the children. The mortgage above mentioned was foreclosed in an action in the
Plaintiff requested an order that the defendant had the burden of proof, which request was refused. Plaintiff testified, among other things, that she never signed a deed to anybody, or authorized anyone to sign a deed for her; that she first learned that she was supposed to have deeded the land away about three years before the case was tried, in October, 1935, when she had asked her youngest son, Lester, to inquire about the taxes, and in doing so he learned the deed from plaintiff to her son Harvey was of record; that she talked to her son Harvey about it and he didn’t say much, but said, “You can have it back again if you want it”; that in 1929 she had suffered a paralytic stroke and since then had not been able to write much, and only with her left hand; she “guessed” she could sign her name; that she had tried it just on a card or something, not very good. She and her son lived together on the farm. They had no agreement about rents. He farmed it for both of them and gave her money from time to time. She paid none of the expenses and expected him to pay the taxes out of the rent. Other evidence on behalf of plaintiff was to the effect that on the first of January, 1932, the plaintiff went to visit her sister, Mrs. Staples, and stayed there until the 16th of May of that year.
The defendant called O. L. Lennen, a notary, before whom the deed was purported to have been acknowledged, who testified that he .had resided in Ness City for more than forty years, in business as an abstracter and notary public; that he knew plaintiff, had been to the farm repeatedly, and knew her son Harvey; that he saw plaintiff sign the deed and took the acknowledgment of the signature in question on the date shown by the deed; that this was done at the home on the farm; that the plaintiff was there and her son Harvey and his wife. Harvey D. McMickell testified that the deed was acknowledged before the notary; stated that his mother, the plaintiff, had signed the deed that day in the presence of the notary, and that he .assisted her by holding her hand while she signed it. In its judgment the trial court found that plaintiff had not sustained the burden of proof upon her allegation that she had not signed or acknowledged the deed in question.
Pending the decision in the trial court, after the evidence was
Appellants further contend that a new trial should have been granted. On the hearing of the motion for a new trial the affidavits of some of the other relatives of the plaintiff were introduced to the effect that she was not in Ness county after about the first of January, 1932, until the 16th of May, as tending to show that the notary was mistaken as to having taken the acknowledgment to the deed on January 27, 1932. There was evidence of the plaintiff on that point at the time of the trial. These affiants were relatives of the plaintiff', most of whom would benefit directly by setting aside the deed and defeating the mortgage, and as to two of them their individual debts had been paid out of the proceeds of the mortgage; At best they were cumulative evidence. Ordinarily a motion for a new trial is not granted on cumulative evidence, neither would the court under the circumstances be required to give full faith to the contents of these affidavits.
Appellants further contend that in any event the court erred in rendering judgment for defendant. This is predicated upon the fact that the mortgage was dated January 1, and recorded January 14, while the. deed from plaintiff to her son Harvey was dated January 14 and acknowledged and recorded on January 27 of the same year. While the mortgage was filed of record January 14, the proceeds of it were paid out between April 15 and 20. This was after the
We find no error in the record and the judgment of the court below is affirmed.