Price v. King

44 Kan. 639

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action in the nature of ejectment, brought in the district court of Atchison county to recover certain real estate. The plaintiff, John M. Price, claims under a certain deed of conveyance, a quitclaim deed, executed to R. F. Smith by the three executors of Courtlandt Palmer’s estate, to wit: Courtlandt Palmer, jr., Charles P. Palmer and Henry Draper, and by the sole executrix of Charles Gould’s estate, to wit, Henrietta S. Gould, and a certain quitclaim deed from Smith and wife to himself, together with certain other facts and circumstances which he claims create in himself an estate in the property, either legal or equitable, or both. The defendant, Samuel C. King, claims the property under certain tax deeds executed to him by the county clerk of Atchison county, and also by virtue of being in the actual possession and occupancy of the property. With respect to nearly all the property the judgment of the court below was in favor of the defendant and against the plaintiff, upon the ground, principally, that it was not shown, even prima fade, that the plaintiff ever had any title or estate, either legal or equitable, in or to the property.

The deed under which the plaintiff claims was evidently intended by all the parties thereto to be the deed only of the aforesaid executors and executrix, executed in the capacity only of executors and executrix, and not executed in any other capacity, or by any other person or persons. All the evidence upon the subject tends to show this. The deed was indorsed on its back, “ executors’ deed.” It was executed in the name of the executors and executrix as such. It was signed by them as executors and executrix. It was witnessed by the subscribing witnesses to the same effect; and it was also acknowledged by the grantors only as executors and executrix; and as a matter of fact, according to all the extrinsic evidence upon the subject, the grantors intended to execute the deed only as executors and executrix, and afterward with the desire and wish of all the parties it was confirmed by the surrogate’s court of the city and county of New York and state of New York as the deed of the executors and executrix; and afterward, at the instance of the plaintiff and Smith, authenticated copies of the wills under which the executors and executrix attempted to execute the deed and the proceedings of the said surrogate’s court showing the probate of the wills, etc., were filed and recorded in the office of the probate court of Atchison county, Kansas — the county in which the land supposed to have been conveyed, including the land in controversy, is situated. And further, each of the parties executing the aforesaid deed was actually an executor or executrix, and all together they were all the executors and the only executrix of the Palmer and Gould estates; and one of such executors, Henry Draper, had no possible interest in the property supposed to be conveyed, except as executor, and as the husband of one of the heirs and devisees; and the grantors mentioned in the deed included the names of only three of the heirs or devisees, and there were three of the heirs and devisees of the Palmer estate and the six heirs of the Gould estate who were not mentioned in the deed as grantors or otherwise.

If the foregoing deed shall be construed to be only the deed of the foregoing executors and executrix, then it must unquestionably be held to be absolutely null and void as a conveyance; and we think it must be so construed and so held. No one of the executors or the executrix as such had any title or estate in or to any part of the property. The wills under which they attempted to act did not give to them or to any one or more of them any title or estate in or to the property as executors or executrix. Nor did such wills confer upon them or upon any one or more of them, or upon anyone else, any power or authority to sell or convey the property or any part thereof, or to alienate the same in any manner whatever. Nor did any court ever attempt to give to them or to any person or persons any such power or authority; and there was always an abundance of personal property on hand belonging to each estate with which to meet all demands that might be presented against such estate. Hence, no fact existed authorizing any court to grant any such power or authority. The plaintiff, however, claims that even if the aforesaid deed is void as a conveyance, and even if for that reason the plaintiff has no legal title to the property in controversy, still that under all the facts of the case and in equity, he has the paramount equitable title thereto. Now in what does the plaintiff’s equities or his equitable title consist ? His title, so far as any writing is concerned, is founded solely upon a quitclaim deed to himself from Smith, the grantee of the aforesaid executors and executrix, and hence so far as his written title is concerned, he claims only under a quitclaim deed from a party, Smith, whose title was founded upon a void executors’ and executrix’s deed, which also was and is only a quitclaim deed; and under a quitclaim deed the grantee therein cannot claim to be a bona fide purchaser or holder of the property or an equitable owner thereof, as against outstanding equities in other claimants of the property. (Johnson v. Williams, 37 Kas. 179.) Indeed, the grantee in a quitclaim deed gets nothing except what his grantor in fact owned at the time of the execution of the deed, which in the present case was nothing, as the executors and executrix, as such, owned nothing in the present case. And such a deed will not estop the maker thereof from afterward purchasing or acquiring an outstanding adverse title or interest in or to the property and holding it as against his grantee. (Simpson v. Greeley, 8 Kas. 586, 597, 598; Bruce v. Luke, 9 id. 201, 207, et seq.; Scoffins v. Grandstaff, 12 id. 469, 470; Young v. Clippinger, 14 id. 148, 150; Ott v. Sprague, 27 id. 624; Johnson v. Williams, 37 id. 180, 181.)

It is possible that there might be cases where a party claiming only under a quitclaim deed would have equities beyond the mere terms of his quitclaim deed, but we do not think that this case falls within any of such cases. It is possible where a party purchases real estate and pays a full consideration therefor and takes only a quitclaim deed as a conveyance, that his claim of title to the property should be treated at least with favor, but such is not this case. The real estate claimed by the plaintiff to have been conveyed in this present case was worth at the time of its supposed conveyance from $10,000 to $12,000, with an incumbrance on it for taxes amounting to from $300 to $500; and yet the plaintiff’s grantor, Smith, paid only $225 for such real estate — less than one-fortieth of the actual value of the property; and the plaintiff, in fact as well as presumptively, knew all this. Also, where there is fraud on the part of the vendor or a mutual mistake of the parties or some accident intervening, it is possible that the holder of a quitclaim deed might obtain equities beyond the terms of his deed: for instance, where the deed is defective or does not fully express what the parties intended that it should express, equity might reform it or might con sider it as reformed so as to make it express or accomplish what both the parties intended that it should express and accomplish. But that is not this case. The deed in the present case is just what the parties intended that it should be, and if it were changed in its form or effect in any particular, it would be what the parties intended it should not be. It is true that Smith desired a different kind of deed, and at the instance of Smith two different deeds were sent to the agent of the grantors for execution, but they refused to execute the same, and would not execute any other or different kind of deed than the one which they did in fact execute, and the negotiations with reference to the matter were going on and pending between the parties for about eight months before any final agreement was reached; and after all the parties were well informed as to the facts, Smith finally agreed to take and knowingly did take the very deed which is now in controversy in this case and afterward paid the aforesaid $225 for the same. He took it knowing what it was, and that he could not obtain any other or different kind of deed. And the plaintiff knew the same. There was no fraud, no concealment, no misrepresentation, no deception on the part of the grantors or their agents, and no mistake with reference to the facts on the part of anyone. A quitclaim deed was executed by the grantors merely as executors and executrix, and all the parties knew it; and this quitclaim deed really conveyed nothing, leaving the entire title to the property in the heirs and devisees. By this deed Smith got nothing, and he conveyed nothing to the plaintiff by his quitclaim deed to the plaintiff. And the facts were not such as to create or vest such equities or equitable title in the plaintiff that he may now disturb the rights of the defendant, who holds and claims by a separate and independent title adverse to both the plaintiff and his grantors.

There are also eases where an agent or trustee attempts to bind his principal, but from some lack of authority or from irregularity he fails to do so, and in effect binds himself. But such is not this case. The executors and executrix in this case did not attempt to bind any person. They merely quit- claimed any interest which they might haye as executors and executrix in the property; and as before stated, no party was deceived or defrauded or mistaken as to the facts, but all were fully and completely cognizant of the same. Smith got all he purchased or paid for when he got his quitclaim deed. He did not purchase or pay for the individual rights of any person. Of course in the beginning there was some talk of conveying the title to the property, and Smith at all times desired that such should be the case, but the executors and executrix refused, and consented only to quitclaim as to any interest which they might possibly have in the property as executors and executrix. They did not agree to sell or convey any interest which they or others might have in the property in any other capacity; and in the capacity of executors and executrix they will probably never dispute the plaintiff’s title. Indeed, all the parties will at all times admit that Smith got by his quitclaim deed and conveyed to the plaintiff by another quitclaim deed all interest which the executors and executrix ever possessed in the property, which in fact was nothing.

The defendant makes the claim that no title passed to Smith or to the plaintiff, for the further reason that neither the wills nor the probate thereof, nor any of the proceedings of the surrogate’s court of the city and county of New York, were filed or recorded in the office of the probate court of Atchison county, Kansas — the county in which the land in controversy is situated — until long after the aforesaid deed from the executors and executrix to Smith and the deed from Smith to the plaintiff were executed, delivered, accepted, and recorded. The first of the foregoing deeds was executed in New York on June 24, 1880. It was transmitted to Kansas on July 8,1880, but on account of disputes between the parties it was. not accepted by Smith until about February 7, 1881, when it was accepted by him, paid for, and then recorded in the office of the register of deeds. It was confirmed in the surrogate’s court of the city and county of New York on May 23, 1881. The deed from Smith to the plaintiff was executed on June 25, 1881, and was recorded on July 5, 1881. The wills were never probated in Kansas, and no proceedings with reference thereto were ever had in Kansas until April 1,1882, when authenticated copies of the wills and the records of the proceedings of the aforesaid surrogate’s court were filed and recorded in the office of the probate court of Atchison county, Kansas. Now it is claimed by the defendant that no will can be effectual to pass title to real estate unless the same has been probated or recorded in Kansas according to the statutes of Kansas; and §§24 and 29 of the act relating to wills, and § 1 of chapter 102 of the laws of 1879 (Gen. Stat. of 1889, ¶2932), are referred to as sustaining this claim. Said § 29 reads as follows:

“Sec. 29. No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate, or recorded, as provided in this act.”

Upon the foregoing facts and statutes referred to it is claimed by the defendant that no title had ever passed to anyone under the wills when the foregoing deeds were executed and delivered, and therefore that no title could have passed to Smith or to the plaintiff because of the wills or otherwise when the foregoing deeds were executed, for at that time neither the executors, nor the executrix, nor the devisees, nor anyone else who might claim title under the wills, had any such title under the same to pass to anyone; and that as both such deeds were merely quitclaim deeds, which could not operate to pass future acquired titles, no title could ever subsequently have passed under them — and the cases heretofore cited are referred to as authority for such claim. With reference to these claims of the defendant just mentioned we shall express no opinion, as we do not think it is necessary for the decision of this case.

„ , . , , Quitclaim deed noStiepMséá to grantee. We decide in this case, however, the following: The first quitclaim deed executed by the executors and executrix to Smith did not, of itself, and at the time it was executed, con vey to Smith any title or interest in or to the property described in the deed, for at that time graators, as executors and executrix, had no such title or interest to convey, nor any power or authority to convey any such title or interest; and nothing afterward passed under such deed or by virtue of its terms, for it was only a quitclaim deed; and such is and always has been the law with respect to quitclaim deeds. And nothing at any time passed by virtue of any of or all the facts and circumstances taking place prior to, contemporaneous with and subsequent to the execution of the deed, for no fraud, deception, concealment, mistake of facts or accident occurred or intervened, and it was not the intention of the parties that anything but the interest of the executors and executrix as such, or the interest which they might have had the power to convey, should pass. And we might further say, that a party can never obtain, by way of estoppel or ratification or otherwise, what it was never expected or intended that he should obtain.

Finding that the plaintiff’s supposed legal title, founded upon the aforesaid quitclaim deeds, is void, and not finding any equities in favor of the plaintiff sufficient to create an equitable title, we think the judgment of the court below is correct. There are a few other questions presented in this case, but we do not think that they need comment. The plaintiff may pay the taxes due on the two lots adjudged to him at any time, and may then obtain the possession thereof.

The judgment of the court below will be affirmed.

All the Justices concurring.