Reyburn v. Christman
Reyburn v. Christman
Opinion of the Court
The opinion of the court was delivered by
This was an action by tenants in common for the partition of certain real property. The appeal is from an order of the court refusing to direct the commissioners to set off certain property to defendant and from an order overruling defendant’s exceptions to the report of the commissioners. The facts, not in controversy, may be stated briefly as follows: A. J. Christman, an early settler and longtime resident of Wichita, accumulated a substantial amount of real property. Some of this was commercial buildings in the business part of the city and much of it was land
On November 5, 1952, the defendant filed a motion in which he recited his fractional interest and that of each of the plaintiffs in
“Pursuant to the Orders of the Court, we went upon and viewed the real estate described in the Order, the same being to-wit (describing all the real estate). . . .
“After careful examination of the premises and due consideration, we conclude that partition of the said real estate could not be made without manifest injury for the following reasons, to-wit:
“(b) That the valuations of said properties differ to such an extent that they cannot be equally divided up by partition without manifest injury.
“We therefore proceeded to make an appraisement and valuation of the said properties and the appraisement and valuation so made follows, to-wit: . . .”
This was followed by detailed descriptions of the property, all in Wichita, which we summarize. The Christman home at 1227 North Topeka was appraised at $18,000, the business property at 300 North Rroadway at $160,000, the business property at 114 North Rroadway at $65,000, the business property at 218 North Rroadway at $60,000, and the business property at 125 North Santa Fe at $24,000. This was followed by a detailed list of 116 lots or tracts, each separately appraised, at values which varied from $450 to $18,-750. The total appraised value of the real estate was $503,975. This made the appraised value of the share of each of the parties to the action slightly under $63,000. Thereafter defendant filed exceptions to the report of the commissioners which contained an argument as to how the property might be divided in kind so that he could get the particular property he wanted, and moved the court to set aside the report of the commissioners and to refer the matter back to them with directions to allot portions of the.real property to defendant, as suggested. At the final hearing of defendant’s motion for directions to the commissioners to allot him certain property and his exceptions to the report of the commissioners, held on January 6, 1953, at which all parties were represented, defendant, called as a witness, testified:
“I would like to have Lots 1 to 17 inclusive, in Block A, and Lots 1 to 8 inclusive in Block B allocated to me. ... In the Second Addition I would like to have the South 150 feet of Block G allocated to me. and enough of the remaining lots so that the total allocated would amount to somewhere near one-eighth of the total appraisal.”
Asked to state his reasons, other than sentimental ones, he answered:
“If this property that I have elected to take here is awarded to me with the exception of these residential lots, the majority of the residential lots, with the exception of one, I would build a home on, would be sold as the rest of it isn’t revenue property, but I will attempt to convert it into revenue property. On this lot at Lincóln and Woodlawn, that is that 150 feet in block G, I already have made tentative arrangements to put a filling station on there
Robert M. Kaufman, called as a witness by defendant, testified he was a certified public accountant and engaged principally in the fields of state and federal income taxes. The substance of his testimony was that if the property were sold at its appraised value and the proceeds divided among the eight owners each of them would have income taxes in a sum of between $11,500 and $12,500, but that if the property were divided in kind they would not be liable for income taxes. This statement was questioned by counsel and may have been weakened somewhat by cross examination. After the testimony and argument of counsel were completed the court made the following statement:
“The problem that is bothering the Court is this; that here we have an appraised valuation of approximately a half a million dollars out of which certain properties could not be allocated. In the opinion of the Court the property over here on Broadway that is appraised at $160,000.00 that could not be set aside to any of them. Likewise about the two down town buildings at $65 and $60 thousand, they could not be set aside to any one of the plaintiffs, or the defendant. That means that approximately $285,000.00 of property must be sold, which would leave a balance of about $215,000 in property that might be allocated to the eight heirs. . . .
“Out of that there is this one piece of rental property which is naturally the one that this defendant wants at $24,000 the Heliums warehouse building, and there is the $18,000 homestead, I think it is the old family home on North Topeka; the property that this defendant has requested to be set aside to him the $18,750.00 commercial block at Woodlawn and Lincoln is probably the best and most valuable vacant tract in the entire two additions, with possibly the exception of the lots—the 25 lots facing on Kellogg which have been appraised at $500 each except one at $750. This is property that is bounded by commercial enterprises on both sides, and in the opinion of the Commissioners and also in the opinion of this Court that is of very small value for residential purposes or property; that it ought to be zoned for commercial properties. Also I understand that the Planning Commission has refused to zone this for commercial purposes, which makes it of an entirely speculative value. That if it were rezoned, it, in the opinion of the Court, should be of considerably more value per lot than $500.00. On the other hand, those lots should not be divided, in the Court’s opinion, by awarding 3 of them to each of the 8 parties, that would defeat the entire purpose of the valuation.
“The Court does not see how, even with the balance of the $215,000, which includes the homestead and the Heliums building, plus the vacant lots, how it can be equitably and properly divided among the 8. Therefore, the Court is going to deny the request that the Commissioners allocate the properties to the defendant; and also overrule the exceptions to the report of the Commissioners.”
Counsel for appellant have briefed their argument under four divisions, one of which has four subdivisions. Counsel for appellee has followed the same outline. We find it unnecessary to treat these separately, and to do so would extend this opinion unduly. In the decision of this case the pertinent statutes (G. S. 1949) that need to be considered read as follows:
“After the interests of all the parties shall have been ascertained, the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly. Upon making such order the court shall appoint three commissioners to make partition into the requisite number of shares. For good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties. (60-2105.)
“The commissioners shall make partition of the property among the parties according to their respective interests, if such partition can be made without manifest injury; but if such partition cannot be made, the commissioners shall make a valuation and appraisement of the property, valuing each tract separately where there are more than one. They shall make a report of their proceedings to the court forthwith. (60-2107.)
“Any party may file exceptions to the report of the commissioners, and the court may for good cause set aside such report and appoint other commissioners or refer the matter back to the same commissioners. (60-2108.)
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.” (60-2114.)
The real question in this case is whether the trial court erred in overruling defendant’s motion for directions to the commissioners to set off certain property to defendant. The court had authority to do so “for good and sufficient reasons appearing to the court.” Were such good and sufficient reasons shown? The trial court thought not, and we agree. It is clear from this record that the defendant was wanting particular property set off to him because he thought that property was more likely to increase in value than other property involved in the action if it were rezoned and if some of it could be handled so as to become income producing property. The trial court thought that somewhat speculative. However, assuming it to be true, the other parties to the action were as much entitled to the benefits resulting from that situation as the defendant. To cut them off from such benefits by first allotting specific property to defendant would have been improper.
Appellant’s contention that if he had to buy the property instead of having it set aside to him would cost him some eleven or twelve thousand dollars in taxes, which he would not have to pay if the property were set off to him, caused this court to stay proceedings in the trial court and to advance this case for an early hearing. Now we are not impressed that it should be given serious consideration on this appeal for the reason, among others, that even after Mrs. Reyburn made her election to take a part of the property at the appraised value there was left, among other properties, the business property at 144 North Broadway, valued by the commissioners at $65,000, which he could have selected. At the worst that would have cost him about $2,000 in owelty, which would have been much less than his claimed loss in taxes. Neither are we seriously impressed with the sentimental reasons which he pressed upon the trial court, and repeated here, that he wanted this property because it was property his parents had accumulated over the years by hard work and thrift. Those sentiments normally cluster
There is not much else to this lawsuit. Although the time to do so was short, capable and industrious counsel have filed briefs setting forth their views and have cited numerous authorities. We have considered all their arguments and examined their authorities, but we find it unnecessary to review them here in detail.
We find no error in the record. The judgment of the trial court is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.