Stith v. Williams , 227 Kan. 32 ( 1980 )

McFarland, J.,

dissenting: I must dissent from the result reached by the majority. As stated in the majority opinion, the case was tried on written and documentary evidence, which places the appellate court in a position to determine the facts on a de novo basis. We are concerned with Lots 13 and 14 in a 1906 plat. Lot 13 is irregularly shaped, with its boundary with Lot 14 being at an angle to the street rather than a vertical line intersecting the street. In 1940, Mr. Goldsberry purchased Lot 14 and in 1945 Mrs. Beard purchased Lot 13. In 1952, Mrs. Beard purchased enough of a strip off of Lot 14 to straighten the boundary line so that the line was vertical to the street. This made the boundary line between the Beard and Goldsberry property conform to an existing fence.

In 1955, Mrs. Beard conveyed what she thought was her entire interest in the tract to the Faulkners. She forgot about the strip being an additional tract. The property description in the contract for sale was copied from Mrs. Beard’s original deed (Lot 13) and, accordingly, did not describe the strip from Lot 14. Mrs. Faulkner’s statement was that the land they purchased went to the fence.

The Faulkners assigned their contract to the Thornbrughs, who received a deed directly from Mrs. Beard. The deed made no mention of the strip. In 1972, the appellants (Williams) purchased Lot 13 from Thornbrugh and the same property description (Lot 13) is in the deed.

In 1973, the appellees (Stiths) received a deed to Lot 14, less the strip. Later, when the Stiths hired a surveyor for a different matter, the surveyor reported to the Stiths that the strip was still owned by Mrs. Beard. Mrs. Beard, then an elderly nursing home resident, was contacted by the Stiths relative to the strip. She denied ownership of the strip, stating all interest had been previously conveyed. Subsequently, she received a tax statement for the strip (the first in the twenty years since her conveyance of Lot 13). She finally executed a quitclaim deed to the strip to the Stiths after a stipulated “considerable badgering” by the Stiths and Orville Brehm (Stith’s real estate agent).

The Williams’ house is just a few feet from the edge of Lot 13 — in fact, the new Stith building is only eight feet from the Williams’ home. The Williams had a root cellar and a shed partially on the strip and had been using the strip. The Stiths took unfair advantage of their accidentally acquired knowledge that Mrs. Beard’s conveyance of her property was incomplete and, in effect, “got something for nothing” by “badgering” an elderly lady. I would reverse and enter judgment for the appellants.