402 Steen, State v. (Idaho).

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

Heavey v. Leavenworth Terminal Ry. & Bridge Chicago, R. I. & P. R. Co. v. Holliday, 145 P. Co., 156 P. 699.

Pyles v. Atchison, T. & S. F. R. Co., 155 P. Rogers v. Oklahoma City, 145 P. 357. 788.

THE

PACIFIC REPORTER

VOLUME 158

(98 Kan. 309)

Appeal from District Court, Shawnee

DOTY et al. v. SHEPARD et al. (No. 20215.) | County. (Supreme Court of Kansas. June 10, 1916.) Action by M. R. Doty and another against

(Syllabus by the Court.)

1 APPEAL AND ERROR 783(2)—GroundS FOR DISMISSAL-MOTION FOR NEW TRIAL. Failure to file a motion for a new trial, or filing such motion out of time, does not justify the dismissal of an appeal, but merely restricts the scope of the review of the cause which is appealed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3125; Dec. Dig. 783(2).] 2. APPEAL AND ERROR 891-PROCEEDINGS ON APPEAL-INTRODUCTION OF ADDITIONAL EVIDENCE.

The interpretation of section 580 of the Civil Code (Gen. St. 1909, § 6175) announced in Hess v. Conway, 93 Kan. 246, 144 Pac. 205, is followed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3625; Dec. Dig. 891.] 3. MORTGAGES 213-RECOVERY OF POSSES

D. S. Shepard and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Waters & Waters and T. M. Lillard, all of Topeka, for appellants. E. A. Austin, of Topeka, and J. T. Pringle, of Burlingame, for appellees.

DAWSON, J. All of the matters involved in this lawsuit except one are already res judicata. Railroad Co. v. Thisler, 96 Kan. 184, Syl. par. 2, 150 Pac. 580. When this case was here before (Doty v. Shepard, 92 Kan. 122, 139 Pac. 1183; Id., 92 Kan. 1041, 141 Pac. 1013), it was said:

"We find nothing wrong with the referee's findings of fact, which were approved by the trial court, but it should also be ascertained and found what the rights of Nellie P. Shepard SION-FULFILLMENT or Contract. are in the Tabor property. When this is done, When possession of property is held by a and the result added to the findings already creditor under an agreement that he will recon-made, the rights of the parties can easily be devey when he has been fully reimbursed by rents termined." Page 128 of 92 Kan., page 1185 of and profits for funds advanced and for taxes and 139 Pac. incidental expenses paid by him, the debtor is entitled to recover possession when the creditors' claims are satisfied.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 482-491, 1576; Dec. Dig. 213.]

4. QUIETING TITLE 10(5)-RIGHT OF AC

TION.

When title to property is held by a person named by the creditor under the circumstances suggested in syllabus paragraph 3, an action to quiet the debtor's title will lie when the creditor has been fully reimbursed.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 41; Dec. Dig. 10(5).]

5. TRUSTS 134 TITLE OF TRUSTEE.

One who holds title to property for another, without personal interest therein, holds title only to such legal and equitable interests in the property as were vested in his cestui que trust. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 177; Dec. Dig. 134.]

6. DEEDS 121-QUITCLAIM DEED-RIGHTS OF GRANTEE.

One who acquires title to property by quitclaim deed and without personal consideration holds only the estate of the party through whom his title was acquired, and if that estate was defeasible or terminable, and the conditions under which it might be defeated or terminated have transpired, the title of the grantee under the quitclaim deed cannot prevail against one having a valid claim to the property.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 394-400; Dec. Dig.

121.]

The district court sent the case to the referee, who made the following findings of fact and conclusions of law:

"In addition to the findings and conclusions included in the report already made by me in this action, I find from the evidence that on or about the 19th day of August, 1889, H. D. Shepard, the husband of the defendant D. S. Shepard and the father of the defendant Nellie P. Shepard, purchased at sheriff's sale in Osage county, Kan., lots 12, 13, 14, and 15 in block 18 in the city of Burlingame, and had the same conveyed by the sheriff of Osage county to one Max Buek for the sum of $1,251; that the purchase price was paid by the said H. D. Shepard; that afterwards and on the 7th day of November, 1889, the said Max Buek and his wife executed and delivered a quitclaim deed by which they conveyed said realty to one Loren A. Dutton; that said Dutton paid nothing for the said conveyance and has never had possession of said real estate or claimed any interest therein; that afterwards and on the 25th day of January, 1906, the said Loren A. Dutton executed and delivered a quitclaim deed by which he conveyed said real estate to the defendant Nellie P. Shepard.

"II. That said Nellie P. Shepard paid no consideration for said conveyance and the said Loren A. Dutton received nothing therefor.

"III. That after the purchase of said property at the sheriff's sale in August, 1889, as hereinbefore found, the said H. D. Shepard went into the possession thereof and collected the rents and profits thereof until his death, which occurred in the year 1904.

"IV. That after the death of said H. D. Shep

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-1

ard, the defendant D. S. Shepard, who is the mother of the defendant Nellie P. Shepard, collected the rents from the said real property until the month of March, 1910, upon which date the defendant M. R. Doty took possession thereof, as I have already reported in the original report filed in this action.

"V. That when said H. D. Shepard purchased the said real property as herein before found, he agreed with M. R. Doty and C. E. Doty to advance the money for the purchase price thereof and to reconvey the property to M. R. Doty or C. E. Doty at any time that they should pay him the amount that he was required to pay for the same, together with the interest thereThere was no time fixed for the repayment of the said purchase money. The money was to be paid to the said Shepard and the reconveyance made whenever the said Dotys demanded it.

on.

"Conclusion of Law.

"The Supreme Court has decided in this action that, when H. D. Shepard purchased the said real property as I have hereinbefore found, he held it simply for the purpose of security for the purchase money advanced by him, and that after he had remained in possession of the same and collected rents and profits sufficient to repay him the purchase money and interest thereon, after deducting taxes and other legitimate expenses, this claim to the property was satisfied and the Dotys were entitled to a decree quieting title to the property as against the said Shepard. I am, of course, bound by that decision, and therefore recommend as a conclusion of law that the plaintiffs' title be quieted against Nellie P. Shepard because she has never paid anything for the property, and is therefore not a bona fide purchaser for value. She has not been in the open, notorious, and exclusive possession of the property, claiming to be the owner thereof for a period of 15 years, and therefore the 15 years' statute of limitations cannot avail her in this action."

The district court gave judgment accordingly.

evidence are foreclosed. So, too, any claim that Nellie P. Shepard was entitled to be subrogated to the rights of a mortgagee for the mortgage placed on the property by Dutton while he held the title for Nellie P. Shepard's father was either presented or waived; for, when parties are engaged in a lawsuit, all the incidents of the controversy must be pleaded and pressed that there be an end of litigation. The findings of fact do not show, and it certainly cannot be presumed, that this mortgage was for the benefit of Doty. A motion is made by new counsel in this case to introduce additional evidence in this court not considered below. This cannot be allowed. Hess v. Conway, 93 Kan. 246, 144 Pac. 205. We have looked into this proffered evidence, however, and it only shows that while the naked legal title was in Dutton he mortgaged the property, and later, on his demand, H. D. Shepard paid off the mortgage, taking an assignment thereof in the name of Counsel for appellant asanother kinsman.

sures us that this mortgage has been paid, but we cannot see that Doty's rights are in any wise affected by this mortgage.

[3-6] Nellie P. Shepard and her predecessors in the chain of quitclaim conveyances, Dutton and Buek, holding as they did without consideration and merely for the convenience of H. D. Shepard, had no interest in this property except that of naked title holders for H. D. Shepard. Johnson v. Williams, 37 Kan. 179, 182, 14 Pac. 537, 1 Am. St. Rep, 243; Goddard v. Donaha, 42 Kan. 754, 756, 22 Pac. 708. Since the interest of H. D. Shepard and that of his estate and of his These findings of the referee were filed heirs terminated when sufficient rents had been collected to reimburse him for moneys March 7, 1915. A motion for a new trial was filed on March 31, 1915. The appellee con- paid out on Doty's account, Nellie P. Sheptends that this was too late. In Bank v. Re-ard is no longer entitled to hold the legal tifining Co., 91 Kan. 434, 438, 139 Pac. 587, it was said that a finding of fact by a referee has the effect of a special verdict, and such is the language of the statute. Civ. Code, §§ 300, 305, 306 (Gen. St. 1909, 88 5894, 5899, 5900); Savage v. Challiss et al., 4 Kan. 319, Syl. par. 2. Even if this point be overlooked, and if it should be held that the motion for a new trial was not due until the district court gave judgment on the referee's findings, still the findings of fact must stand, since no motion for a new trial was filed after the judgment was entered.

tle against the Dotys. That there has been such full reimbursement is foreclosed by the original findings of fact:

"XXIV. Up to about the 25th day of March, 1907, H. D. Shepard and D. S. Shepard collected rents and profits from the Tabor property and the Doty store building in sums sufficient, if properly applied, to repay the purchase money, with interest, which was advanced by H. D. Shepard at the time of the purchase of said all of the insurance paid, and all amounts exproperty after deducting all of the taxes paid, pended for repairs made by the Shepards, and interest thereon."

Under the arrangement between H. D. Shepard and M. R. Doty, Shepard was entitled to the possession, rents, and profits and his successive title holders, Buek, Dutton, and Nellie P. Shepard, were entitled to hold the title until March 25, 1907, and this action was begun on March 26, 1910; consequently, all discussion of the statute of lim

[1, 2] But the failure to file a motion for a new trial, or merely filing such motion too late for consideration, does not necessitate the dismissal of an appeal. It merely limits the scope of the review. Perkins v. Accident Ass'n, 96 Kan. 553, 555, 152 Pac. 786. In such case, however, we must take the facts as determined and test the accuracy of the judgment thereon. This, however, leaves lit-itations is irrelevant.

tle to discuss in this case. Here all questions The judgment is affirmed. All the Justices