Hansford v. Silver Lake Heights

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,122

MARVIN HANSFORD,
Appellant,

v.

SILVER LAKE HEIGHTS, LLC, et al.,
Appellees.


SYLLABUS BY THE COURT

1.
A partition action passes all of the grantor's estate unless the intent to pass less is
expressly or necessarily implied in the terms of the grant.

2.
The failure of a party to take a direct appeal challenging the description of the
property in a partition action precludes that party from making a collateral attack on the
judgment in the partition action.

3.
As a general rule, the boundary line between adjacent properties is determined by
referring to the deeds and the intention of the parties as reflected by the descriptions in
the deeds, and when there is no ambiguity in the descriptions they are to be taken as the
conclusive evidence of the intention of the parties. When the property descriptions are
unambiguous and are set out in the deeds, a survey is all that is needed to establish the
true boundary.


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4.
In the absence of fraud or mutual mistake, a transfer of real property based on
described boundaries conveys the land within those boundaries, even if that tract contains
a different amount of acreage than one of the parties may have understood.

5.
In order for estoppel to bar property claims, there must be a false representation or
concealment of material facts; the material facts must be misrepresented or concealed
with knowledge of the actual facts; the party to whom the representation is made must be
without knowledge or means of knowing the real facts; there must be an intention that the
representation will be acted upon; and the party to whom the representation is made must
rely on the representation or act upon it to that party's prejudice.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 4, 2010.
Appeal from Shawnee District Court; DAVID E. BRUNS, judge. Opinion filed July 13, 2012. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Robert E. Keeshan, of Scott, Quinlan, Willard, Barnes & Keeshan, LLC, of Topeka, argued the
cause and was on the brief for appellant.

No appearance for appellees.

The opinion of the court was delivered by

ROSEN, J.: Marvin Hansford was named and served as a defendant in a real
property partition action in Shawnee County. Although he did not respond to the partition
petition and failed to claim that he was the sole owner of any of the legally described
property, he later sought to establish a claim to a portion of the partitioned land against its
purchaser. The district court granted the purchaser's motion for summary judgment, and
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the Court of Appeals affirmed in Hansford v. Silver Lake Heights, No. 102,122,
unpublished opinion filed June 4, 2010. We granted Hansford's petition for review, and
we affirm the conclusions of the courts below.

The record shows that Hansford's grandfather acquired the northeast fractional
quarter of Section 3, Township 11 South, Range 14 East of the 6th P.M., in Shawnee
County (the east land) in 1929. He deeded the east land to four relatives, including
Hansford's father, in 1939. A small portion of that land was later sold to a water district
for a water tower.

In 1947, Hansford's father acquired 50 acres of the land adjacent to the east land.
He later sold 40 acres of the land, retaining 10 acres that abutted the east land to the west
and on which a house was located (the west land). In 1962, following the intestate death
of Hansford's father, the heirs conveyed full title to both the east and west lands to
Hansford's mother, Viola Hansford.

On January 14, 1997, Viola deeded the west land to Hansford. The deed described
the property as:

"The East 10 acres of the East 50 acres of the Northwest quarter of section 3,
township 11, South range 14, East of the sixth P.M., Shawnee County, Kansas."

On January 15, 1997, Viola deeded the east land to Hansford and other relatives as
tenants in common. A barbed wire fence lay on the land that the conveyance deeds
described as part of the east land, near the boundary with the west land. Hansford
maintained the fence and stored personal property and ran cattle on the land west of the
fence from 1997 on. The fence ran obliquely to the legal property boundary so that it
varied from 58.3 feet to 78.6 feet east of the boundary line.
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Viola died on March 12, 2005. Then one of the tenants of the east land, Ora May
Bateman, died, and, on November 8, 2006, the executor of Bateman's estate filed a
petition to partition the interests in the east land. None of the other tenants in common,
including Hansford, filed responses or entered an appearance and, on March 2, 2007, the
district court entered an order finding that the defendants owned the east land as tenants
in common and ordering partition of the property. The partition petition and orders
explicitly described the property at issue as:

"The Northeast Fractional Quarter of Section 3, Township 11 South, Range 14 East of the
6th P.M., Shawnee County, Kansas, EXCEPT a tract beginning at a point on the North
line of said Section 3, which point is 3015.00 feet East of the Northwest corner of said
Section 3; thence South at right angles to said North line of said Section 3, a distance of
217.80 feet; thence East parallel to the North line of said Section 3 a distance of 200 feet;
thence North at right angles to the North line of said Section 3, a distance of 217.80 feet;
thence West along the North line of said Section 3, a distance of 200 feet to the point of
beginning ."

The water district owned the property that was excepted in the metes-and-bounds
description.

After the time for any of the tenants in common to assert a claim to the partitioned
property had passed, the district court entered an order directing that the east land, as
described above, was to be sold at auction. On August 15, 2007, the auctioneers filed a
report certifying that they had sold the east land, as described above, to Silver Lake
Heights, LLC, for $372,900. On the same day, the district court entered an order
confirming the report of sale and ordering the sheriff to convey to Silver Lake Heights a
deed for the above-described property. On August 27, 2007, the district court entered an
order confirming the deed conveying the east land to Silver Lake Heights.
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On September 18, 2007, the district court entered an order allowing partial
distribution of the proceeds of the sale, but it withheld Hansford's share of about $83,000
until he removed his personal property, including cattle, from the real estate and paid
Silver Lake Heights for related expenses. He moved his property from the east side of the
fence to the west side of the fence, and Silver Lake Heights apparently found this
relocation adequate until it conducted a formal survey a few months later. On October 25,
2007, the court entered an order of final distribution, finding that Hansford had removed
his cattle and other personal property from Silver Lake Heights' land and ordering
distribution of Hansford's share of the sale proceeds.

Silver Lake Heights subsequently ordered a survey of the land that it had
purchased, which revealed that the legal description contained in the deed of sale
included the fence and a strip of land west of the fence. On May 15, 2008, Hansford filed
a petition in Shawnee County District Court seeking to quiet title and to enjoin Silver
Lake Heights and others from trespassing and removing property. He alleged in the
petition that the strip of land west of the barbed wire fence belonged to him through
theories of adverse possession and boundary by agreement.

Following limited discovery, Silver Lake Heights filed a motion for summary
judgment. Hansford responded and included a cross-motion for summary judgment. The
district court held that summary judgment in favor of Silver Lake Heights was proper
because Hansford had failed to assert his claim during the partition action and was
consequently barred from asserting the claim in a collateral action. Hansford appealed,
and the Court of Appeals affirmed. Hansford, slip op. at 3-6.

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Discussion

Our standard for reviewing an order granting summary judgment is de novo. In re
Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012).

"'"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d
402 (2000) (quoting Bergstrom v. Noah, 266 Kan, 847, 871-72, 974 P.2d 531 [1999]).'
State ex rel. Stovall v. Reliance Ins. Co., 278 Kan 777, 788, 107 P.3d 1219 (2005)." Smith
v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).

See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333
(2009).

Partition actions are governed by K.S.A. 60-1003. K.S.A. 60-1003(b), relating to
petitions in partition actions, reads:

"The answers of the defendants shall include allegations of the nature and extent
of their respective interests. They may also deny the interests of any of the plaintiffs, or
any of the defendants. Any claim of adverse possession shall be affirmatively pleaded
and the burden of proving the same is on the defendant."

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This court has previously noted the plenary scope of partition actions: "A partition
action is particularly designed and suited to settle any and all rights of cotenants in and to
the property involved. The district court in such a proceeding has full and complete
power to adjudicate every legal and equitable right of the parties to the litigation."
(Emphasis added.) Jones v. Anderson, 171 Kan. 430, 435, 233 P.2d 483 (1951).

This court has recently considered the extent to which collateral actions may
undermine the finality of a partition action.

When the petition in a partition action identifies the subject property by its legal
description without noting any exceptions or reservations, the parties are on notice that
the entire estate is involved. McGinty v. Hoosier, 291 Kan. 224, 241, 239 P.3d 843
(2010). A partition action passes all of the grantor's estate unless the intent to pass less is
expressly or necessarily implied in the terms of the grant. McGinty, 291 Kan. at 241; see
K.S.A. 58-2202. The failure of a party to take a direct appeal challenging the form of the
pleadings, the description of the property, or the order of the sale precludes that party
from making a collateral attack on the judgment in the partition action. McGinty, 291
Kan. at 241; see Jones, 171 Kan. at 435-36.

The petition and deed in the present case identified the subject property by its legal
description and made no note of exceptions or reservations. As a general rule, the
boundary line between adjacent properties is determined by referring to the deeds and the
intention of the parties as reflected by the description in the deeds, and when there is no
ambiguity in the descriptions they are to be taken as the conclusive evidence of the
intention of the parties. When the property descriptions are unambiguous and are set out
in the deeds, a survey is all that is needed to establish the true boundary. Fritzler v.
Dumler, 209 Kan. 16, 21-22, 495 P.2d 1027 (1972). In the absence of fraud or mutual
mistake, a transfer of real property based on described boundaries conveys the land
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within those boundaries, even if that tract contains a different amount of acreage than one
of the parties may have understood. Maxwell v. Redd, 209 Kan. 264, 267-68, 496 P.2d
1320 (1972).

Hansford failed to assert an interest in the described property before the district
court, and he failed to take a direct appeal challenging the description of the property.
The partition action concluded with a court-ordered auction, a court-approved sale, and a
conveyance of deed to Silver Lake Heights, all using the same legal description, without
Hansford asserting any interest in the subject property. He is therefore precluded from
making a collateral attack on the judgment in the partition action.

Hansford nevertheless contends that he established a boundary by agreement with
his mother before she conveyed the east land to the tenants in common. Can a boundary
by agreement, if such an agreement existed, defeat Silver Lake Heights' claim to the strip
west of the fence?

K.S.A. 60-1003(b) requires the defendants in a partition action to include in their
answers "allegations of the nature and extent of their respective interests." If Hansford
had an interest in the east land by virtue of a boundary by agreement, then the statute
governs that interest and required him to answer the petition.

There is good reason to require a party asserting such an interest to plead that
interest in the partition action.

If a party may raise a boundary by agreement at any time, even after the partition
action is concluded, then Hansford could have waited a full 15 years to assert his interest.
At that time, Silver Lake Heights would have been able to assert a defense of adversely
possessing Hansford's land under K.S.A. 60-503; up until that time, Hansford would be
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able to reclaim the property to the detriment of whatever development Silver Lake
Heights carried out on that land.

Furthermore, the partition statute provides for land valuation by appointed
commissioners prior to sale of the partitioned land. K.S.A. 60-1003(c)(2). A sale of the
land must be for no less than two-thirds of the value set by the commissioners. K.S.A. 60-
1003(c)(4). If a party waits until after the sale has been consummated to challenge the
description of the property, the entire partition action may be undermined—the
commissioners will have valued the land based on the legal description, and it is easy to
imagine that removing a portion of that land from the appraisal may dramatically
diminish the accuracy of the valuation.

For these reasons, as well as because of the express language of the partition
statute, we reaffirm the rule articulated in McGinty and Jones that the failure of a party to
take a direct appeal challenging the description of the property in a partition action
precludes that party from making a collateral attack on the partition orders.

The district court and the Court of Appeals held that summary judgment was
proper. Hansford contends nevertheless before this court that his factual claim of a
boundary by agreement not only defeated summary judgment for Silver Lake Heights but
mandated summary judgment in his favor because Silver Lake Heights did not contest the
existence of a boundary by agreement in its pleadings.

It is not enough that a fact be disputed, however, to defeat summary judgment.
That fact must be material to the conclusive issues on appeal. See Osterhaus v. Toth, 291
Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011). Because this litigation is governed by the
statutory requirement that a defendant raise an asserted property interest when answering
a partition petition and by the rules set out in McGinty, 291 Kan. at 241, and Jones, 171
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Kan. at 435-36, the facts that Hansford wanted the district court to consider were
immaterial.

Hansford contends that, the language in the partition orders and conveyance deed
notwithstanding, he already owned the land west of the fence when the partition action
took place. Because a partition action does not expand property rights but merely unifies
them, the partition orders and deed of sale could not have included property not owned in
common. See In re Moore, 173 Kan. 820, 827-28, 252 P.2d 875 (1953) (deed cannot
convey property over which district court did not have jurisdiction).

The problem in the present case is one of timing. There is little doubt that
Hansford could have presented evidence supporting his claim of boundary by agreement
if he had asserted that interest in an answer to the partition petition. Had he done so, the
existence of an agreement to make the fence the property boundary could have been
highly material, and the executor of the estate would have been required to rebut his
claim. Affidavits and the testimony of Hansford, neighbors, and surveyors might all have
been relevant to sorting out a disputed factual issue.

But Hansford waited until after the property, including the strip he now claims,
had been partitioned and sold to assert his interest. This is not a case of a mistaken
boundary line. It does not involve some neighbor who will suddenly lose a strip of land
because the deed inaccurately described the borders of the partitioned property. This is a
case in which one of the tenants in common, one who was on notice that the property
which has been subject to the same description over the course of decades and in several
conveyance deeds, was going to be sold. If Hansford was going to claim an exception
from that property, he had to do so in the partition action prior to the sale.

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Under analogous circumstances, a federal district court has noted that equities
operate against a party who knows of his or her claim to a property interest and who
stands silent during the partition action:

"Here, however, [defendant] Midgett wore both hats. In her capacity as a co-
tenant, she was made a party to the partition proceeding. This provided her with the
opportunity to contest the survey as erroneous in her capacity as an adjoining landowner.
At that time, she could have asserted that the boundaries were wrong and that she owned
a portion of the surveyed tract outright. Instead, she accepted the money, and thereby
benefited from the sale of the land as described in the deed. She cannot now avoid its
burdens." Davis v. Scarborough, No. 89-37-CIV-2, 1991 WL 335374, at *5 (E.D.N.C.
1991) (unpublished opinion), aff'd No. 91-1758, 1992 WL 48015 (4th Cir. 1992)
(unpublished opinion).

Like the defendant in Davis, Hansford wore multiple hats. He was the adjoining
landowner with a putative interest in the property west of the fence line. He was also a
cotenant of the property that included the fence, and he benefitted from the sale of that
property. By standing silently while the east land was partitioned and sold, he benefitted
from the sale; he then sought to benefit from his silence by bringing an action against the
purchaser that also undermined the interests of the other cotenants. It was reasonable and
lawful for Silver Lake Heights to rely on public notices and deeds of sale; it had been
given no reason to suspect that a private agreement between a cotenant and a party not
involved in the partition action might have reduced its interest.

Hansford also contends that by paying out the final sales proceeds, Silver Lake
Heights equitably conceded that it was only buying the land east of the fence. And by the
time Silver Lake Heights conducted the survey, Hansford claims Silver Lake Heights was
estopped from asserting a claim to any land west of the fence.

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Hansford's argument is essentially one of adverse possession, a claim he has
abandoned. He contends that he moved his personal property and cattle from one part of
Silver Lake Heights' land to another part, either under a claim knowingly adverse to
Silver Lake Heights or under a belief of ownership. When Silver Lake Heights did not
immediately contest that relocation and instead distributed sales funds to him, he
maintains, it forfeited its right to that land, even though the decision was based on a
mistake and was rectified within a few months. The only thing missing from this scenario
to turn it into an adverse possession argument is the 15-year requirement of K.S.A. 60-
503.

Hansford suggests that there is another kind of adverse possession that does not
rely on the 15-year statute of limitations. Under this theory, the adverse possession
becomes effective immediately upon a party taking some kind of action inconsistent with
possession.

In order for estoppel to bar property claims, there must be a false representation or
concealment of material facts; the material facts must be misrepresented or concealed
with knowledge of the actual facts; the party to whom the representation is made must be
without knowledge or means of knowing the real facts; there must be an intention that the
representation will be acted upon; and the party to whom the representation is made must
rely on the representation or act upon it to that party's prejudice. Place v. Place, 207 Kan.
734, Syl. ¶ 4, 486 P.2d 1354 (1971).

Several elements of estoppel are missing in the present case. It was not Silver
Lake Heights that falsely represented that the fence was the property line; it was
Hansford who did not make public his claim to the strip of land west of the fence. Silver
Lake Heights did not intend that Hansford would act upon the uncertainty of the property
line by laying claim to the strip of land. Finally, Hansford was not prejudiced by his own
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assertion of ownership of that land, except that he subsequently had to move his property
and cattle further west.

Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.

MORITZ, J., not participating.
GREGORY L. WALLER, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Waller was appointed to hear case No. 102,122
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.