Johnston v. Winfield Town Co.

The opinion of the court was delivered by Valentine, J.: This was an action brought by T. K. Johnston, S. C. Smith, J. D. Cochran, W. Q,. Mansfield and J. P. Short, against the Winfield Town Company, to have a certain quitclaim deed set aside and declared null and void. At the trial of the case the court below excluded certain evidence offered by the plaintiffs; and whether the court erred therein or not, is the only question now presented for our consideration. The petition in the court below alleges among other things as follows: The N.E.J of the N.W.J of sec. 28, in township 32 south, of range 4 east, constituted a portion of the town-site of the town of Winfield, Cowley county. The probate judge of said county entered this portion of said [396] town-site at the United States land-office “in trust for the sev•eral use and benefit of the occupants thereof according to their respective interests.” But whether the probate judge ever entered any other portion of said town-site or not, is not shown or stated in the petition. The defendant, a corporation, claimed to own said portion of said town site entered by the probate judge, but their ownership was disputed by the plaintiffs, and others. The plaintiffs were occupants and inhabitants of said town-site, and had and still have an interest therein; but whether any one of them ever was an occupant or inhabitant of that portion of said town-site claimed by the defendant, or ever had any interest therein, is not shown or stated in the petition.' The plaintiffs and thirty other persons, in pursuance of a verbal agreement, made a quitclaim deed to said defendant for that portion of said town-site claimed by said defendant. The consideration expressed in the deed was one dollar paid to each of the grantors, the receipt of which they each acknowledged in the deed. According to said verbal agreement the defendant was to pay each grantor one dollar, and obtain a quitclaim deed from each occupant of said town-site. This was not done, and the plaintiffs now complain. But how such a quitclaim deed from each occupant of the town-site to the defendant could be a consideration for the quitclaim deed from the plaintiffs to the defendant, or how it could be of any benefit to the plaintiffs, is not disclosed, and cannot easily be imagined. Whether such a quitclaim deed would be a benefit to any one, is not stated in terms. But if it should be a benefit to any one, it would certainly appear most strongly to be a benefit only to the defendant. The petition also alleges that the acknowledgment of said quitclaim deed was procured fraudulently. We do not think that said petition states facts sufficient to constitute a cause of action. The deed which the petition asks to have set aside appears upon its face to have been regularly executed and acknowledged. It'is found in the possession of the grantee, and has been duly recorded. All this appears from the petition and exhibits; and this at least is [397] prima facie evidence that the deed was duly executed and delivered. The petition nowhere alleges that it was not duly executed or delivered. (Perhaps a denial contained in a petition, of the execution of a written instrument set forth in the petition, need not be verified by affidavit, as is required to be done of a denial contained in a subsequent pleading putting in issue an allegation of the execution of a written instrument.) But the petition not only fails to deny that the deed was duly executed, but it even admits and alleges that it was so done. With "reference to the execution the petition uses the word “make,” twice; the word “executed,” once; the word “executing,” three times. The petition does not pretend that there was any fraud in the execution of said deed. It states however that there was fraud in the acknowledgment of the execution of the same, and in recording it. But it does not state in what the fraud consists. No facts showing fraud are stated. But even if there was fraud in the acknowledgment of the execution of the deed, or in recording the same, still that would not invalidate the deed. Even if the execution of the deed had never been acknowledged before any officer, and even if the deed had never been recorded, it would still be valid, if it had been in fact executed. There is no breach of said verbal contract, nor of any contract, nor any default on the part of the defendant, ■ alleged in said petition, except that it is therein alleged that the defendant did not pay said plaintiffs, each one dollar, and did not procure a quitclaim deed from all the occupants of said town-site. These two things, which it is claimed should .have been done, it will be remembered are what the plaintiffs alleged in their petition constituted the consideration for their executing said quitclaim deed. As to the consideration: We suppose that in the absence of fraud the consideration expressed in the deed cannot be impeached, contradicted, or varied, for the purpose of invalidating the deed. The consideration expressed in the deed we suppose may be contradicted or varied by evidence aliumde, where fraud is alleged, or where the grantor sues for the consideration, or where the [398] grantee sues for a breach of some covenant contained in the deed. But wé do not think that such a thing can ever be done in the absence of fraud merely for the purpose of setting aside the deed. The consideration expressed in the present deed ‘was one dollar, and the plaintiffs each in the deed acknowledged the receipt of the same. And this is conclusive in a case of this kind. The evidence offered to be introduced by the plaintiffs, and excluded by the court, was evidence tending to show that the deed was not fully executed, and a want or failure of consideration. That is, the plaintiffs desired to show that the deed was not to be considered a deed until all the occupants of said town-site had executed quitclaim deeds to the defendant, and until the defendant had paid each grantor one dollar, and that none of the conditions had been fulfilled. We do not think that such evidence was admissible under the state of the pleadings. It would all tend to contradict either the plaintiffs’ petition, or their said deed, and without any sufficient allegations of either fraud or mistake. We might further say, although we think under the pleadings the question is not in this case, that a deed apparently fully executed and acknowledged and delivered to the grantee, to become an absolute deed upon some condition, is not an escrow, but is immediately a deed absolute. (McKean v. Massey, 6 Kas., 122.) The judgment of the court below is affirmed. All the Justices concurring.