Gray v. Crockett , 35 Kan. 66 ( 1886 )

The opinion of the court was delivered by

Houston, C. J.:

It is claimed by the plaintiff that the order directing the trial of this cause to be had in Douglas, instead of Wyandotte county, is void, and if not void, is at least erroneous. The order was based upon the affidavit of H. C. Long, one of the defendants, setting forth that —

“He was advised by his attorney that Hon. W. E. Wag-staff, the district judge, was a material witness for the defendants upon the trial; that he believed the advice to be true, and that he desired the testimony of the judge at the trial, and intended to procure the same if a change of venue was granted.”

Section 56 of the civil code reads:

“ In all eases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some county where such objection does not. exist.”

The contention is that a district judge is not “disqualified to sit,” even if a material witness in 'a case, and that the affidavit upon which the order changing the place of trial to Douglas county was made was insufficient, in that it did not set out what the defendants expected to show by the judge, nor was it otherwise made to clearly appear that the judge was a material witness.

, ....... asawitness. granting change not erroneous. ^ , granee! when not' ~We do not think the order of the court void. A judge is not competent as a witness in a cause tried before him, for this, among other reasons: That he cannot hardly be deemed capable of impartially deciding upon the admissibility of his own testimony, or of weighing it against that of another. It is now well settled that the same person cannot be both witness and judge in a cause. (1 Greenl. Ev., 12th ed., § 364; Ross v. Buhler, 14 La. 312; 2 Bouvier’s Law Dictionary, 12.) Therefore we think that where a judge is a maferja¡ anc[ necessary witness in a case, he is “disqualified to sit.” If the district court had overruled the application to change the place of trial upon the affidavit presented, we would unhesitatingly pronounce the ruling eminently correct, because it seems to ns that the true rule in such a case is, that such facts and circumstances must be proved by affidavits, or other extrinsic evidence, as clearly show that the judge is a material and necessary witness; and unless this clearly appears, a reviewing court will sustain an overruling of the application. (City of Emporia v. Volmer, 12 Kas. 622.) The affidavit, in this case, for the change of venue, should have disclosed how the attorneys obtained knowledge of" the fact that the district judge was a material witness, and all the facts the defendants believed the judge would prove. This was not done; but, although the affidavit is deficient in this respect, we cannot wholly ignore , . , . . , the personal knowledge ot the judge who transferred the case. A judge ought not to transfer a case upon a mere suggestion, or even upon an affidavit stating conclusions only; and no change of venue should be granted except for cause, true in fact and sufficient in law, and all of this should' be made to clearly appear to the-court; but when an affidavit is presented in general terms for such a change, and the judge has personal knowledge that he is disqualified to sit, a change of venue ordered by him upon the affidavit and his own personal knowledge that he is disqualified, cauuot be declared erroneous. (City of Emporia v. Volmer, supra; Edwards v. Russell, 21 Wend. 68 ; Moses v. Julian, 45 N. H. 52.)

The contract set forth in the petition is as follows:

“April 22, 1881.—Agreement between H. C. Long and B. Gray for sale of his farm of thirty-three acres, south side of Tauro mee street, Wyandotte, for eight thousand dollars:

“ Said Long agrees to sell the said farm for $8,000, payable as follows: $500 by the 28th of April, inst.; $1,500 in three months from date; aud balance, $6,000, in three years, wdth interest at 8 per cent. ®

“Gray agrees to make payments as above, and pay Armstrong’s commission, not exceeding $100.

“ Gray to have possession when $2,000 is paid, and deed then to be given and mortgage then given to Long for three years at eight per cent, interest, with the privilege of paying the whole or part sooner. H. C. Long.

B. Gray.”

■ The principal and the important question involving the merits of this case arises upon the following finding of fact:

“At the time of the making of the written agreement, Martha M. Long, wife of H. C. Long, was present, heard the contract stated, knew the terms and conditions thereof, and did not dissent therefrom excepting she expressed a desire that the deferred payments should draw ten per cent, interest instead of eight per cent., as provided in the contract.”

A further finding of the trial court is to the effect that Mrs. Long was the owner in fee simple of the real estate in controversy, and as a conclusion of law, upon all the facts found, the court decided that Mrs. Long was not estopped from asserting her ownership or title to the same by reason of any act of hers suffered or done before, at the time, or since the making of the written contract of April 22d. At the time of the execution of this contract, Long and wife lived upon the land within the city of Wyandotte, and the deed from H. C. Long to Richard L. Vedder, of September 13, 1860, under which Mrs. Long claims title, was unrecorded. It had been delivered to the register of deeds of Wyandotte county for record in the year 1860, but was placed with other deeds in a package w'here it remained until found by the register in the fall of 1883. It could only have been found by a person having such knowledge of the business managemeut of the register’s office as to induce an investigation of the package containing the same. The written contract shows upon its face that H. C. Long sold' the land as his own. It is indisputable that the plaintiff supposed he was dealing with Long as the owner of the land; and that both husband and wife were willing to sell is evident from the fact that they did shortly thereafter sell, at an advance. Mrs. Long asserted no title to the premises until after the decision of this court in June, 1883, that the land was within the limits of the city of Wyandotte, and therefore, that only one acre thereof was exempt as a homestead. (Gray v. Crockett, 30 Kas. 138.) This was more than two years after the execution of the written contract. Upon the belief that Long was the owner of the land, the plaintiff commenced his suit for a specific performance of his contract on March 3, 1882. This suit was prosecuted by him for over a year with-, out Mrs. Long making her title known, and the money.and time of the plaintiff were expended in his attempt to obtain the conveyance which H. C. Long had agreed to execute. When the case was tried at the July term of the court for 1882, it was admitted by all the parties, for the purposes of the trial, that on April 22, 1881, H. C- Long was the owner of the land described in the contract.

4. oiaim or titleestoppel. Upon the findings of fact, we think Mrs. Long is estopped in equity from now asserting that at the time of the contract between the plaintiff and her husband/ she was the owner of the premises described therein. Questions relative to estoppel are not in general controlled by technical rules, but are usually determined upon principles of equity and good conscience. Mrs. Long stood by and allowed the contract to be executed; to some extent she participated in the negotiations preliminary to the execution of the contract. Her silence as to her title, her acquiescence at the time of the contract, and her failure to disclose her title during the earlier stages of this litigation, invoke against her the familiar rule of justice, that if one stands by and allows another to purchase his property without giving him any notice of his title, a court of equity will treat it as fraudulent for the owner to afterward try to assert his title. “ He who will not speak when he should, will not be allowed to speak when he would.” (Goodin v. Canal Co., 18 Ohio St. 169; Tilton v. Nelson, 27 Barb. 595; Foster v. Bigelow, 24 Iowa, 379; Anderson v. Armstead, 69 Ill. 452; Thompson v. Sanborn, 11 N. H. 201; Ford v. Loomis, 33 Mich. 121; Beatty v. Sweeney, 26 id. 217; Doughrey v. Topping, 4 Paige’s Ch. 93.)

Jiidge Thompson, in an article concerning estoppels against married women, says:

. “If a married woman owns real property, but her title is not of record, and her husband enters into a contract for the sale of it, of which she is informed at the time and to which she makes no objection, she will be estopped from setting up ' her title to the land to defeat a suit brought* against her husband for specific performance of his contract, and so would her grantee.”

. „ o. Specific per- ^ estóppede¿ome claiming title. (8 Southern Law Review, N. S. 275-310; Smith v. Armstrong, 24 Wis. 446; Catherwood v. Watson, 65 Ind. 576.) We are therefore of the opinion’ that the conclusion of law of the trial judge that Mrs. Long was . , -¶ , ♦ -¶ -»• not estopped trom (asserting her ownership or title to all the premises in dispute, is erroneous, and cannot be sustained.

It is again insisted that defendants are entitled to judgment, even though the homestead included only one acre, as the contract was for the entire tract at a price in gross and not so much per acre, and as the homestead acre was inalienable by the husband alone and was in no manner identified in the contract or its price determined, that there is no way of apportioning the price of the thirty-two acres which the husband could sell. In addition to what is stated upon this point in the former opinion of this court in Crockett v. Gray, 31 Kas. 346, it appears to us from the record that H. C. Long and wife have no real complaint to make. Upon the trial, the plaintiff offered these defendants the privilege of selecting their. own- homestead; therefore they will have the right to retain any acre of the land described in the contract which they may choose.' The plaintiff only asks that his contract be enforced after these defendants select and retain one acre thereof. As was said by Mr. Justice Brewer, speaking for this court when the case was last presented to us for our determination, “it is equitable that the contract of April 22, 1881, be enforced so far as is possible, and not that the contracting party be permitted to avoid his contract obligations.” When Mrs. Crockett purchased, she had notice of the prior sale of the premises to plaintiff, and therefore acted with foil -knowledge of all his rights. (Meixell v. Kirkpatrick, 33 Kas. 282.) L. H. Wood was the agent for Mrs. Crockett, and when she purchased, on December 24, 1881, she had no actual knowledge of the deed from Long to Vedder of September 30,1860. This deed was found by Wood in a package in the register’s office about September 10, 1883; therefore Mrs. Crockett bought the land with ignorance of the title of Mrs. Long, and like the plaintiff, supposed she was dealing with Long as the owner. After the first trial of this case, Mrs. Crockett became afraid of her title, and desired to sell the.land. L. H. Wood then negotiated a sale of it from her to his father-in-law, the latter paying the same price that Mrs. Crockett did, with interest on her money. As all of these sales were made through L. H. Wood, and as he acted as agent both for Mrs. Crockett and his father-in-law, and had notice of all the rights of plaintiff, the latter parties are charged with his knowledge. Wood and the principals for -whom he acted dealt with the land as that of Long, upon the belief that the contract of April 22, 1881, could be avoided, solely because the land described therein was outside of the limits of the city of Wyandotte, and therefore, being the homestead of H. C. Long and wife, could not be alienated without their joint consent.

The attempt to set aside the contract of April 22,1881, upon the ground that Mrs. Long was then the owner of the premises, is an afterthought, evidently not contemplated when the joint answer of the defendants was filed. The statute provides that in cases decided by this court when the facts are found by the court below, this court will send a mandate to the court below directing it to render such judgment in the premises as it should have rendered uj>on the facts found. Under the statute, therefore, in view of the conclusion obtained, as none of the findings are excepted to by the defendants, the cause must be remanded, with directions to enter judgment for the plaintiff. (Code, §559.) Of course the plaintiff is only entitled to the enforcement of the contract of H. C. Long. He did not bargain for or purchase the supposed inchoate interest of Mrs. Long. She did not sign the contract, and was not asked to sign the same. The plaintiff is entitled to what his written contract calls for. The decree, however, for the specific performance of the contract, as well on the part of H. C. Long, as of Mrs. Crockett, must be so framed as to fully protect such inchoate interest of Mrs. Long, as the wife of H. C. Long, whether owned by herself or subsequent to the contract transferred to her co-defendant, Mrs. Crockett. The rights of the plaintiff are the same as though the deed from H. C. Long to Richard L. Vedder, of September 13, 1860, had never been executed, and as though there had been no con-' veyance subsequent to the contract, from H. C. Long to Elizabeth I. Crockett.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

All the Justices concurring.