Pollock v. Agner

The opinion of the court was delivered by Horton, C. J.: It is insisted that, if Mrs. Alice Agner was entitled to recover a judgment in her favor, it should have been for the annulment of the conveyances alleged in her petition and the reinvestment in her of the title to the property ; therefore, that the trial court erred in rendering a personal judgment for the value thereof. No objection appears in the record to have been taken to the amended petition on account of any misjoinder of parties or causes of action, or for duplicity or multifariousness. The parties submitted the case to the court for final disposition, expressly waiving a jury. There was no proof offered upon the trial that George L. Beard, to whom the property in controversy was conveyed by Wm. J. Pollock and wife, or the mortgagors of the property, had any notice or knowledge of the wager or bet between R. H. Agner and Wm. J. Pollock. They were innocent parties. At the commencement of this action, George L. Beard, who held the legal title to the property, was the bona fide owner and holder thereof. The deed of the property had been obtained from Mrs. Agner without any consideration. Before it was delivered by H. P. Farrar, the stakeholder, to Pollock, he had notice of the illegal transactions between R. H. Agner and Wm. J. Pollock, and, under the decisions of this court, Mrs. Agner was entitled to reclaim and recover the deed, on demand, from Farrar. (Reynolds v. McKinney, 4 Kas. 94; Jennings v. Reynolds, 4 id. 110; Cleveland v. Wolff, 7 id. 184.) With full notice of all of the rights of Mrs. Agner, ac [622] cording to the evidence introduced on her behalf, Farrar delivered the deed to Pollock, and thereby assisted him to convey away the property to an innocent purchaser and deprive Mrs. Agner of the same. Farrar said to R. H. Agner “that he had made himself whole against any damages from Pollock in delivering the deed before he should have done so.” There is sufficient evidence in the record showing that Mrs. Agner not only held the legal title to the property at the time of executing the deed, but was the owner thereof, and that H. P. Farrar delivered the deed after the demand was made upon him for it by Mrs. Agner. Under all these circumstances, the trial court committed no error in rendering a personal judgment against both the defendants, Pollock and Farrar, for the value of the property of which she was deprived of her interest and title by them. Some of the witnesses testified the property was worth $900, others that it was worth $1,000. It was incumbered with a mortgage of $106, which, with interest thereon, amounted to $120 at the time of the conveyance to Pollock. The deed was dated the 6th of November,' 1888. There was sufficient evidence to sustain the judgment of $875, as rendered. The judgment will be affirmed. All the Justices concurring.