Markley v. Markley ( 1948 )

For respondent to prevail in such an action as this, she had the burden of presenting convincing evidence to establish that she had somehow acquired a one-half interest, legal or equitable, in the Kansas property. I find no such evidence.

Charles A. Cave gave uncontradicted testimony that the probate proceeding in Kansas was at the insistence of the title company. The majority, in effect, says that that statement is refuted by the fact that Cave took to Kansas a deed in which respondent had joined as grantor; and that, consequently, it is to be inferred that Harry Markley knew there was going to be a probate proceeding in Kansas. Based on that knowledge, Harry is held to be responsible for the allegations contained in a petition for probate prepared, verified, and filed by an attorney who was employed either by the bank through which they were dealing or by the title company, and whom he never saw or knew. On those allegations, an estoppel is predicated.

Getting the signature of respondent on a deed before going to Kansas for the purpose of clearing title to the real property, seems to me the careful and prudent thing to have done; but, even if it be conceded that the inference relied upon by the majority may be properly drawn from that circumstance, something more than a debatable inference should be required to establish the right of respondent to a half interest in the Kansas property, legal title to which, the majority concedes, vested in Harry on the death of his father, James Markley.

The burden of proof was on the respondent to establish her half interest in the Kansas real property. She did not produce the testimony of the Kansas attorney nor of any officer of the title company to disprove Mr. Cave's statement, if it be false, that the suggestion of probate proceedings came from the title company. She relies upon the debatable inference to which we have just adverted to prove the basic fact in her claimed estoppel,i.e., that Harry had knowledge of the Kansas probate proceedings.

If he had such knowledge, there was nothing about the probate petition that would constitute an estoppel. Respondent did not rely upon it, did not change her position because of it, did not even know about it until it was discovered in the course of preparation for the trial of this case. The most that can be said is that the allegations of the petition for probate in Kansas are inconsistent with Harry's present position, and with the fact that, on the death of his father, title to the Kansas real property vested in him. Something more than an inconsistent position is required to constitute an estoppel, and something more than an inconsistent position was required to divest Harry of an undivided one-half interest in the real property and to vest it in respondent.

Although the majority opinion concludes with the words ". . . appellants are now estopped to deny the effect of the Kansas proceedings," the majority, earlier in the opinion, says that it does not mean to hold that

". . . merely because appellant presented his father's will to the probate court in Kansas, he is estopped from claiming ownership in the property and thereby denied the right to the full proceeds of the sale. . . . But that procedure is a very strong indication that there was an agreement between the parties that the property would be considered as belonging to them jointly."

I have no doubt that, when James was alive, it was agreed between Harry and him that, if the Kansas property could be sold, they would share jointly in the proceeds. James would have been giving up a life estate and Harry, his interest as a remainderman; there was a reason, a basis, and a consideration for such an agreement. I find no reason, no basis, no consideration for any such agreement between Harry and respondent after the death of James had vested the fee-simple title in Harry.

It will be remembered that, as pointed out by the majority, James had complicated the title to the Kansas real property by a conveyance from respondent and himself to his brother Benjamin, who had in turn deeded the property back to James, all of which was part of an abortive attempt to change the life estate of James into a fee-simple title. Had respondent refused to sign a deed to that property, a suit to quiet title probably would have been necessary. That, and no more, was the interest which she has been able, by this lawsuit, with the aid of the claimed estoppel based on the inferred knowledge, to parlay into an equitable one-half interest in the Kansas real property, or $7,181.77, being one half of the net proceeds of the sale of that property.

MALLERY, C.J., and BEALS, J., concur with HILL, J.

November 18, 1948. Petition for rehearing denied.