Peck v. Ayres

100 P. 283 | Kan. | 1909

The opinion of the court was delivered by

Smith, J.:

The common source of title of the plaintiff and the defendants is Thomas J. Lockridge. The next link, or links, in the chain of title of the plaintiff is a judgment of the district court of Johnson county in the case of Alice R. Peck {née Soyster) against Charles-R. Lockridge and Nannie J. Bell {née Lockridge), who-were the surviving children of Thomas J. Lockridge, and a quitclaim deed from Charles R. Lockridge and. Nannie J. Bell to Alice R. Peck, and a quitclaim deed,, based on a tax deed, from E. E. Peck to John W. Peck, the husband of Alice R. Peck. This judgment and these-deeds conveyed all the title that vested in Alice R.. Peck and her husband, John W. Peck, at the time they executed the warranty deed to Henry Cochran. While-possibly these instruments were in the first instance admissible as evidence in the chain of title of the plaintiff, none of them constituted any evidence against the-title of the defendants. The defendants were not parties to the suit in which the judgment quieting the title-in Alice R. Peck was rendered, and had no notice or' knowledge thereof; they were minors, and were not represented by guardian or otherwise. John W. Peck, with his wife, was in possession of the land. He was receiving the rents and profits thereof, and was under obligations to pay the taxes for the non-payment of which the tax deed to E. E. Peck was issued. The purchase of the deed by John W. Peck amounted only to a redemption of the land from thé tax sale. {Carithers v. Weaver, 7 Kan. 110;. Delashmutt v. Parrent, 39 Kan. 548, 556, 18 Pac. 712; Broquel v. Warner, 43 Kan. 48, 22 Pac. 1004, 19 Am. St; Rep. 124; Warner v. Broquet, 54 Kan. 649, 650, 39 Pac. 228,.) The deed from Mrs. Ogg and husband to the plaintiff was essentially a quitclaim deed. (Gen. Stat. 1901, §§ 1203, 1204.) And although the court found as a fact that the plaintiff was a purchaser of the land in good faith, the question is not one of fact but of law. The decision in Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243, is decisive of this question, and has been cited with approval many times by this court. In the opinion in that case it was said:

“A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is a purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records, or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.” (Syllabus.)

It was also said in Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708:

“A person claiming to own land under a quitclaim deed executed to him is bound to take notice of all superior titles to the land which might have been discovered by proper inquiry.” (Syllabus.)

The judgment in the case of Alice R. Peck against Charles R. Lockridge and Nannie J. Bell, as well as the quitclaim deed of Charles R. Lockridge and Nannie J. Bell to Alice R. Peck, through which the plaintiff claims title, would both have informed him of the existence of the will of Thomas J. Lockridge, through which the defendants claim title. In this suit the plaintiff can not be heard to say that he did not know the facts which the record upon which his title is based discloses. Nor can he be heard to say, as against these defendants, that he thought his deed from Mrs. Ogg and husband was a warranty deed and that he did not know that his deed was in fact a quitclaim deed.

The court also found as a conclusion of law that the defendants ought not at this time to be permitted to set up and claim, as against the plaintiff, any right, title or interest in or to the quarter-section of land. The plaintiff in his reply pleaded the judgment above referred to as an estoppel, against the defendants. A judgment against minors in a suit of which they had no notice, to which they were not parties and in which they were not represented by guardian or otherwise can not constitute an estoppel against them. Nor is it any evidence against their claim of title, nor is the stipulation as to the facts in that case competent evidence of any facts in this case.

Under the rule in Shelley’s case Alice R. Peck would, under the will of Thomas J-. Lockridge, have taken the entire estate upon the birth to her of an heir. But that rule has been abrogated in Kansas by section 7990 of the General Statutes of 1901, and under our law the remainder in fee vested -in the children upon their birth. (Williams v. McKinney, 34 Kan. 514, 9 Pac. 265.)

The plaintiff, through successive conveyances, acquired the life-estate of Alice R. Peck in the land which she derived by the will of Thomas J. Lockridge. She is still living, and the plaintiff has the right to possession of the land as against the defendants until her death. Neither the pleadings nor evidence disclose facts which would give the defendants any cause of action against the plaintiff by reason of his possession of the land. If they had no cause of action against him no statute of limitation, or prescription even, began to run in his favor against them.

The judgment of the court is reversed, and the case is remanded for ^a’new trial.