*1 734 46,041
No. Place, Place, v. Appellees, V. Place Brockelman, G. and Marvin L. Brockelman Appellant, ( LaVon Defendants). 1354) (486 P. 2d Opinion July filed 16, 1971. Spies, Schroeder, Heeney, Spies, Topeka, argued Howard A. Groff cause, Stephen M. Todd of the same firm was with him on the brief appellant. for the *2 George Forbes, Tulsa, Okla., argued cause, Krueger, Thomas and Emporia, Claussen, Topeka, and Arthur L. brief for were with him appellees. opinion court was delivered by
Harman, C.: The action in title district court was one to quiet to real estate. The in the In trial principals case are father and son. to the court the plaintiff son de- and his and the prevailed wife fendant father has appealed.
At trial some salient facts not were in were and others dispute fully developed because of loss We of the witnesses. recollection summarize those pertinent to controversy determination of the revealed by the record. The defendant A. Place was a successful farmer dairy J.
Emporia area. In 1958 Place, his wife of years, many passed Janis away. Prior to this time A. had talked his son about Lloyd J. his conveying property to him. had Lloyd school while quit either the tenth or eleventh grade to work on the farm. His dairy father had he said would him give all he had if would Lloyd stay and work on the farm and do as he said. Mr. and Mrs. Place were the parents of four children: The plaintiff Lloyd daugh- and three ters, Wanda, LaVon and Darlene. At the time of his wife’s death A. was the record owner of three tracts land in Lyon county J. of small consisting rental properties known as Emporia the “town property” two tracts Place comprising the farm which were known as the “home place” and 24, the “east On place”. February days four after the death of Place, A. took Lloyd Janis J. his Mary Ann wife to the office anof Emporia attorney two where deeds had been previously at A. prepared A. direction. said J.’s J. he was going to give all Lloyd deed, the property. One dated 24, 1958, February was a warranty deed conveying the three tracts of land from A. to Lloyd and Ann. A. Mary executed this deed J. J. and delivered it to Lloyd with instructions to have it recorded which instructions promptly, were with. At complied the same time deed, Lloyd and his signed another dated February wife A. conveying same property principal factual dispute J. on this occasion. Lloyd concerns events testified this second did deed with folded he not read or examine it but simply In instruments signed signing where his father directed. testified A. said always relied his father. He further J. place wanted the could live on the home paper signed so that he during agreement his lifetime. Lloyd thought paper wife, Ann, testimony, this effect. Lloyd’s substantiated this Mary that after the A. stated the testifying property deeds were signed J. now belonged signed and her. second the farm paper believing would allow to live on J. rest of his life. A. testimony much disputed plaintiff’s admitted execution of signing the two deeds. His version of the of these two that I would have protec- instruments was “so simply tion, and I I wanted him to me the deeds back straight so could it in His put my name I to—back anytime again”. wanted memory was trans- faulty with aspects to several respect action. He testified he had intention of conveying no Lloyd; after right remarriage. died thinking wife he was *3 Later A. of procured also of title another placement piece J. name, in realty Lloyd’s property subject also action, a This being 120 acre tract known “Collins tract”. as the tract had been previously being farmed the Places and was purchased in the name of A. Wanda under a contract daughter J.’s sale; however, all A. on the payments contract were made J. Wanda had assigned her in the Place. contract to Mrs. Janis Upon death A. estate. was administrator of appointed her Janis’ J. He children, obtained disclaimers to the from all the Place property paid off the remainder of the seller the contract and had price execute a warranty deed to deed was Lloyd. This executed September A. at 1959. in the 1958 transaction As J. substantially the time obtained a deed back him for the same Collins land from Lloyd and his wife. was Lloyd’s promptly recorded —A. was not. any had recollection None J.’s of events in occurring connection with signing of these deeds and Lloyd’s first awareness he was owner tract of this came when he noticed the land Collins was listed on his real tax estate notice. However, all the two in parties concede deeds were fact executed as indicated. Lloyd always thought Collins tract was a part of the Place farm. A. also had a with two disagreement of his daughters following J.
Mrs. Place’s death respecting disposition of the proceeds Janis of certain bonds which had in been held the names of Mrs. Place and the two daughters. A. remained amicable affairs between his son Apparently J. in home
for a of time. house on the period Lloyd lived first He place and later in the smaller house with his wife children. route, bill operated the to which he had dairy previously received time sale, and worked on farm 1958 to 1962 at which from route dairy Lloyd was sold. Thereafter continued to work on farm for in short various periods jobs time as well maintain city left Emporia until he the farm 1968. Meanwhile A. J. entered into a all termi- marriages, succession three short-lived nating divorce. any He never told of these wives owned real and in estate at one of least his divorce swore proceedings owned none.
During period of farm insurance amity changed was show as the Lloyd owner and from insured build- proceeds arising ing losses were him; paid to at A. Lloyd request J.’s executed an amortization on a bank realty; the farm mortgage account denominated was “Place farm account” opened; Lloyd the only person A. authorized to checks on this account but sign J. signed it; Lloyd’s name on the of the Place part checks drawn on farm was taken in hired Lloyd condemnation proceedings; farm; attorney and was as owner shown pleadings in a Lloyd received placed which were condemnation proceeds name; line time deposit power and his wife executed farm; on carried under easement were farming operations certain federal feed shown and grain programs with written between operator; as the owner A. applications J. times; three and four cattle when were handled at hundred was injured claimed and received working while on the farm he workmen’s compensation Lloyd; benefits as employee *4 bank and both borrowing Lloyd for A. money farming operations J. were required Lloyd to submit financial statements was shown but as salary owner all Lloyd of a nominal realty; monthly received did; from the farm income for the small amount work A. J. had indicated he social security needed more on his own quarters program; A. had tax always income forms prepared Lloyd J. contents; signed knowing without some returns showed A. as Lloyd’s Considerable employer. evidence was re- developed J. specting farming any but there was no evidence of operations change actual in their signed. method after the 1958 deeds were A. always collected the rental on the city properties. J. district court federal in large judgment had had a
In 1954 A. J. and employee an upon assault him against allegedly entered had thereafter that case he trial of in the testimony his a result of as attempting and perjury subornation of perjury, convicted of been corrupt justice. to deteriorated, osten- and Lloyd A. between relations Eventually J. chil- Lloyd’s and A. treatment drinking
sibly because J.’s On November the farm. dren, moved off Lloyd to point and he also recorded Lloyd his two deeds from A. recorded J. L. and her LaVon Brockelman his daughter he had made to a deed all the conveying G. purportedly Marvin Brockelman husband deed was this latter to them. At the same time realty question con- another sign A. Brockelmans executed by J. him A. did not record deed. veying property J. filed this suit A. and naming and Mary thereafter Lloyd J. and title to personalty as defendants certain embracing Brockelmans filed as estate mentioned. Brockelmans already as well the real in the any sought interest disclaiming property plain- an answer the action was dis- plaintiffs’ application tiffs and thereafter as missed to them. to A. and trial had. court en- joined Issues were The trial J. and findings judgment: the following
tered opinion of “It is the the court that it was the intention of the that complete Place the life of all estate and the A. would retain use the real J. question, ownership personal property located of all the on the real estate Mary Ann Place real and that V. Place and would be owners property upon opinion Place. It is of the court that the death A. also J. Place, conduct, by his oath A. disclaimer interest statements under J. any property, estopped that he did have interest in said real be not should any claim estate other than life interest real use of same. defendant, Place, judgment “It is court A. that the declared J. personal property of all life all real be owner and the use of adjudged plaintiffs that are the owners of the remainder be .” interest all the real estate. has from that appealed judgment portion decreeing remainder in the realty Ann. The latter have not from appealed part judgment. makes contentions.
Appellant several He asserts trial court giving erred not full force and effect to appellees’ two deeds of him reconveyance him decreeing thereby complete fee title realty. owner Appellant’ does not position take into account a general rule of contract construction. In Skinner v.
739 594, Skinner, 601, substantially con- litigants 270 Pac. 126 Kan. conveying ownership contracts executed two temporaneously other, the initial stock first back to the owner. party to one then This court held: parties, are same at or near the “Where two instruments executed time, transaction, concerning same in the course the same same
subject matter, they together, they although will read and construed do (Syl. 1.) not in terms refer to each other.” ¶ Where such instruments together, general are construed pur- S., pose the entire Deeds, transaction should C. control (26 § 91a, p. 841). Another rule into v. Wal- coming play expressed Gaynes lingford, 458, 185 Kan. 347 P. 2d in this manner: equity acquired “A court having jurisdiction subject once aof matter will subject out reach and draw into its consideration and determination the entire bring parties full, therein, matter and it the so that a before interested com plete, equities rights adjusting effectual and final of all decree may 1.) (Syl. be entered and enforced.” ¶ Hence the trial err court did not determinative refusing give effect the one instrument to the of the other. exclusion complete The trial court based its a remainder judgment giving appellees interest in all the realty on grounds two separate —intention parties in the execution of the deeds and equitable estoppel. ruling is attacked and grounds. defended both
We may quickly dispose issue propriety judg- ment based upon equitable The elements of that doctrine estoppel. were succinctly Voshell, stated Pelischek v. 181 Kan. 313 P. 2d as follows: estoppel (1) “. in order to constitute an must have been a there representation facts; (2)
false or it concealment of material must have been knowledge, facts; (3) constructive, party made with actual or knowledge knowing it whom was made have been or means without facts; (4) it real must have been made the intention it with that should upon, (5) party be acted to whom it was made must relied on have prejudice.” (p. 717.) or acted toit We need not already Obviously, belabor facts recited. cer- tain essential aspects of defense Suffice lacking. say are appellees never their or changed position acted upon anything done appellant their prejudice. exchange of the deeds caused not a ripple change method of operations respect- the land to ing detriment nor kind of financial appellees’ any other *6 the basis on sustained cannot be simply judgment
detriment. estoppel. of the subj'ect the was next the property We discuss found as trial the court In effect transaction. February a remainder create to thereby intended to this property parties estate a life retention of with the realty in appellees interest issue upon a factual of the was parties The intention appellant. ob- and con without which the trial court received evidence pro in dispute. the facts It to chose version jection. accept appellees’ and not gift a claim the a result Appellees remainder estate the farm or by way of to remain on arrangement contractual Upon to claim. this impediment We see no to care appellant. is- factual disputed we are not concerned with review appellate support sues but evidence only sufficiency look was evidence ample the trier of the fact. There findings by made occasion. February 24th gift of a support theory upon finding with sufficiently Likewise evidence supports appellees’ a finding Although the court’s respect parties’ intention. generous retention of a life more interest in was perhaps appellant in his favor than (a warranted testimony would have appellees’ life estate “east “town “home property”, place” than place” rather the “home right live in house on Moreover, place”) appellees have not this finding. from appealed the evidence of the conduct the Place parties handling of the farm and the town is consistent property following these deeds with the it by intention found the trial revealed Generally court. retained while A. Hence capital received income. trial court’s action in a remainder interest awarding appellees in the realty which was the trans- subject February, action must be upheld.
A different is with the “Collins question presented respect tract”. As already the trial court’s it not judgment may stated as to ground on the was upheld estoppel. testimony There no anyone concerning the execution Collins deeds between 1958. Both deeds were received in evidence. September, a Although were forced to concede their execution of deed appellees land back to neither conveying appellant, appellee the Collins tire of that event or circumstances. first any recollection of an was the record owner the Collins land learned he was listed on his tax notice statement. Consequently when that land as to the intention in these two nothing parties’ executing have we may intention not be finding upheld deeds and the trial court’s claim the Collins evidentiary deficiency. Appellees of this because However, contention ignores this gift. also land on the basis of them. executed contemporaneously effect of second deed delivery of the two deeds execution and legal effect of the alone, title, accomplished nothing standing they the actual too, They, parts single as between the constituted parties. was, in in- title previously transaction which left the where land. stance in must as to this appellant, prevail who court’s with to the “town Consequently judgment respect the trial affirmed; the “east property”, place” “home place” with judgment as to the “Collins tract” is reversed directions to judgment enter for appellant.
approved by the court. I cannot the rationale the J., dissenting: agree with or
Fromme, result reached in this case. There was no substantial evidence to support a that the intention of was to create a finding the parties life estate in the father the son. the with remainder over to Neither father nor the son this to their Their testimony contend intention. was otherwise.
The quiet title action focused the and effect of two con- force on temporaneous deeds.
The consideration, sons’s deed was executed by the father without delivered to the son and recorded deed by purported him. The its face to convey fee title without simple to the son reservation.
The deed back father before acknowledged to the was dated and notary a one day later. This reconvey its face to purported on fee simple title to father it without was Although reservation. not recorded later, until almost ten it to the years was delivered father and rights no of third parties are action. The involved failure to record does not affect a rights parties between deed.
The father denied any intention a gift of inter vivos of making this land to the son. son The claimed the land as a gift admitted his signature on the father’s deed. He claimed that his father repre- sented the deed to be a which paper gave the father right live house on home place.
The rationale of opinion of the court although based upon law contract completely overlooks the fact that these two deeds 742 dated and and were face clear and on their unambiguous
were intention of the In such case apart. one acknowledged day (Oaks written instruments. from the must be ascertained v. Directors Hill, 501, 814; Library Board v. 322 P. 2d 182 Kan. of upon bases 2d Scott, 533.) 134 Kan. 7 P. Fort City of are mutual can be impeached in a deed or deeds language fraud, like. (Board and the misrepresentation of parties, mistake Scott, supra.) City Directors v. Fort Library of based judgment propriety In disposing that certain recognizes majority opinion equitable estoppel On page lacking of that are from the evidence. aspects defense opinion says: the court changed say appellees wife] never [the ". . . son and his Suffice it position father] upon anything appellant to their [the their or acted done change prejudice. exchange ripple not a of the deeds caused any operations respecting appellees’ nor other land method detriment hind financial .” detriment.
This case I has been established being the fail to see how basis mutual for There was no deeds. impeaching unambiguous fraud misrepresentation mistake to establish or parties, it or necessary is establish detriment an element prejudice This misrepresentation. who is fraud or person victim was admittedly claim to lacking, appellees’ way inter vivos from the father and not upon gift based agreement contractual consideration. supported by Tolle, said: In 99 Kan. 162 Pac. Pennington v. *8 distinctly representations “. False an estate reserved regarded purchaser.” transfer can not be as a fraud (p. 438.) what he got in such case reasoning being purchaser that for and reserved paid any representation as an pur- act grantor and not did not conveyed consideration chaser’s detriment. He of the land.
In our case the son claimed as the donee present no detriment paid gift no consideration for the suffered reason of the claimed that the deed back to the misrepresentation only agreement father was to allow father to live in on the home In the noth- place. exchange gained house of deeds neither nor did lose suffer detriment. ing anything It is for me understand rationale of impossible majority It opinion. to hold the appears back father void and of no effect. It then reforms the deed the son so as to reserve a life estate in the father and transfers a remainder interest only to the son.
Parol evidence should not have been admitted to vary terms of these two contemporaneous fee simple deeds. The deed back to the father placed the legal and equitable title in the father. Therefore I respectfully dissent.