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mortgage are fully stated in the opinions in this action. After taking possession, with the Rathbun v. Berry, supra, and Implement Co.

knowledge, consent, and encouragement of K.,

he made lasting and valuable improvements on v. Schultz, supra, in view of the special find

the land of the value of about $7,000. A. at ings of fact of the jury.

the instance of K., bought an outstanding title It is suggested that the plaintiffs are not at- to the land from a party claiming the same, taching creditors, and that, as they took their

and obtained a deed from such party. K. ex

ecuted a quitclaim deed to A. to the land, which mortgage with notice of the prior mortgage,

was not accepted, because it was not a warranty the Beck mortgage is not void as to them. deed, and on account of a dispute about the par. It is true that they had notice of the prior

ment of the purchase price. On the 10th of

September, 1883, K. obtained a patent from the mortgage when they accepted their mortgage

government, and in a few months thereafter to secure their claim. Instead of taking a brought his action against A. to recover back lien by attachment, they preferred a mort

the possession of the land. Held that, upon the

above and foregoing facts, K. is estopped from gage lien; but, when they accepted their

disturbing A. or his successor in interest in the mortgage, they had notice that J. W. Epley

possession to the land. had possession of the mortgaged property 3. Where a person has made a homestea ! as the owner thereof, had the absolute con

entry upon public land in his possession, and.

in violation of the homestead act, sells and trol over the same, the absolute right to sell

transfers the land to another, and agrees to exit as he chose, and the absolute control over ecute and deliver to him a deed therefor, so soon the proceeds. They knew, therefore, that the as he can obtain a patent, and in attempting to Beck mortgage was void, and no lien upon

avoid the provisions of the homestead act, for

bidding any alienation of the land before the the stock of goods.

entry is completed, the parties sign, in pursuA motion has been filed in this case to dis- ance of the contract of sale, a written lease for miss, upon the ground that the case made

a term of three years, and the purchaser takes was not signed and allowed within the time

possession of the land and continues in posses

sion about ten years, making lasting and rallimited within the order of the court. The uable improvements thereon of great value, and record does not sustain the allegations of the subsequently a patent is issued to the party

making the homestead entry, held, in an action motion. The case made seems to have been

brought by the person making such entry to resigned and settled according to the provisions cover back the possession of the land, the purof the statute, in the presence of the attor- chaser may give in evidence all of the facts neys of the parties, after amendments to the

concerning the illegal agreements entered into,

and may also show that the lease was simply case had been suggested by the defendants.

executed to carry out the fraudulent purpose The judgment of the district court will be of the parties. reversed, and the case remanded, with di- (Syllabus by the Court.) rection to that court to render judgment upon

Error from district court, Rice county; H. the findings of fact in favor of the plaintiffs, W. Gleason, Judge pro tem. and against the defendants, J. W. Epley and

Action by John McKinnis against John W. H. Beck. All the justices concurring.

McAnulty. Defendant had judgment, and plaintiff brings error. Pending a review, the

Scottish-American Mortgage Company was (55 Kan, 259)

substituted as defendant. Affirmed. McKINNIS V. SCOTTISH-AMERICAN On the 19th of February, 1881, John Me MORTG. CO.

Kinnis commenced his action against John (Supreme Court of Kansas. April 6, 1895.)

W. McAnulty to recover the possession of

160 acres of land described as follows: The SUBSTITUTION OF PARTIES-EJECTMENT-PUBLIC LANDS-ESTOPPEL-EVIDENCE.

S. W. 14 of section 5, in township 20 S., of 1. In an action for the possession of real

range 8, in Rice county; and also to recover estate, the plaintiff was defeated in the trial $2,000 for rents and profits. Trial had on court. He filed his petition in error in the su- the 25th of September, 1889. After the evipreme court to review the rulings of that court.

dence had all been introduced, the court conDuring the pendency of the proceedings in the supreme court, defendant transferred his title tinued the case for argument until the 28th and all his interest in the property in litigation of February, 1890, and after the argument to another party.

Hold, that the supreme court, of counsel the court made and filed the folupon application of such other party, may allow him to be substituted for the defendant in

lowing conclusions of fact: "(1) That on the error, as his successor in interest.

6th day of January, 1871, the plaintiff J. H. 2. On the 6th day of January, 1871, K. filed McKinnis filed his homestead entry on the his homestead entry on a quarter section of public land in Rice county, in this state.

He

southwest quarter of section 5, township 20. resided thereon until June 30, 1871. On that range 8 west of the 6th P. M., in Rice county. date he entered into a parol contract with A. to Kansas. That he resided thereon up to and sell to him the homestead, and convey the same about June 30, 1874. I find that he has been to him for $1,400, after he had received a patent. Eight hundred dollars was to be paid

a soldier in the service of the United States down in personal property, and SCOO to be paid government, and that on said June 30, 1974, when the patent was issued.

For the purpose he had resided upon said property a suti. of attempting to avoid the inhibition of the

cient length of time, including the time al homestead act, J. drew up a pretended contract of lease for three years, which was signed by lowed him on account of his service in the the parties, but left with him. The property army, to entitle him, upon filing of final proof, was turned over to A. by K., and the purchase

to a patent from the United States governmoney was paid. A. continued in possession and control of the land for about ten years, and

ment. I find that on said day he enteret was in possession at the time of the bringing of into a parol contract with the defendant to sell to him said homestead, and to convey the was immediately forwarded to the general same after he had received a patent. That land oftice, and that the land in controversy the contract was that the defendant should was covered by said map of definite locapay him $1,400 for the homestead. That he tion, and that from that time on the said should pay the sum of eight hundred dollars Atchison, Topeka and Santa Fé Railroad in cash and certain personal property, at Company claimed to be the owners of said that time turned over, and that the other real estate. I further find that some time $600 should be paid when the patent was in November, 1876, the said railroad comreceived from the United States govern- pany had served a notice upon said defendment, and a warranty deed made by him ant McAnulty to remove from said premises, to the defendant, which deed the plaintiff and notified him of its claim to the title to promised to make on receipt of said pat- said property, and that in the fall of 1876 ent. I find that said parties went to E. both the plaintiff and the defendant had full C. Jones to have contract drawn up, but knowledge of said railroad company's claim that they were informed that under the to the title thereof. I find that prior to the United States laws a sale could not be made fall of 1876, that the plaintiff had removed of a homestead, and that, for the purpose to Iowa, and during the latter part of said of avoiding the inhibition of the United fall returned to Kansas, and went upon the States statute in relation to the alienation premises in dispute, and saw the improveof a homestead, the said E. C. Jones drew ments thereon, and that he encouraged the up a contract of lease for the said real es- defendant to continue making said improvetate for the term of three years, which lease ments, and received some portion of the was signed by the parties and left with the deferred payments from the defendant at said Jones. The terms and conditions of the said time, which was paid him at his the lease are substantially as follows: That request. That at said time he went to the in consideration of $800, to be paid as fol- land office at Larned, and made his final lows: A team of horses, harness, spring proof. That some time in November or Dewagon, and one or two horses valued at cember of said year the plaintiff and de$610, and $160 in cash, to be paid by the fendant took a journey to Topeka together 15th of July, 1874, said property was leased after making the final proof, and that the for the term of three years. Said lease con- matter of their contract was talked over. tained all the ordinary covenants of a lease, It was there talked of and treated as a the original of which is set out and attached sale of said real estate. That the plaintiff to the deposition of the said Jones filed in encouraged the defendant to go on with his this cause. I find that said property was improvements, and told him that he should turned over and said money paid as pro- never lose the property, and promised to vided for in said lease and under their parol | make him a deed as soon as he got his patcontract. I also find that said lease was not ent from the government. That during said the original contract between said parties, conversation the matter of the claim of the but was a subterfuge adopted by them to railroad to said land was talked over, and avoid the provisions of the law of alienating that said plaintiff at that time authorized homesteads prior to the receipt of a patent. and directed defendant to settle with the That, soon after making said contract of railroad company by the purchase of its sale, defendant entered into possession of outstanding title, and agreed that should said premises, and has continued in posses- he maintain his title, and get a title patent, sion and control thereof to the present date. that he would make him a deed thereof. That he at once commenced making valu- That on the 10th day of November, 1877, able improvements thereon. That the plain- the said Atchison, Topeka and Santa Fé Railtiff encouraged him in making such improve- road Company commenced a suit of ejectments, and told him on several occasions to ment against the defendant in the district continue making the same; that he would court of Rice county, Kansas, to eject him convey the property to him as soon as he from the possession of said premises, said could get his patent. I find he continued suit being based upon the claim of title heremaking valuable improvements upon said tofore referred to. I find that subsequent premises with a full knowledge of the plain- to beginning said suit plaintiff was notified tiff, and that up to December, 1896, that the thereof, and that he authorized the defendimprovements that he had made thereon ant to settle with the railroad company, and, were of the value of $3,000, all of which as the defendant understood, he was justi. were made with the plaintiff's consent, and fied, from the language and conduct of the by his advice and encouragement, and un- defendant, to take a deed from the rail. der the promise that as soon as he received road company and purchase its title. That his patents he would make him a deed. I on July 7, 1879, the defendant settled with find that on the 30th day of January, 1871, said railroad company by paying the sum that the A., T. & S. F. R. R. Co. filed in the of $250, and he received from said railroad office of the secretary of the interior at company a warranty deed to said premises, Washington, D. C., its map of definite loca- and the said plaintiff subsequently ratified tion of its lands granted it by the govern- said purchase. I find that subsequent to ment in the state of Kansas. That the same said purchase the plaintiff executed a quitclaim deed to said defendant, and offered it, be heard in good faith to establish at this to the defendant, and that the same was time. (4) That the defendant is the owner not accepted, for the reason that the de- of all title to said real estate, including that fendant claimed a warranty deed, and be conveyed by the patent to the plaintiff.” cause there was some dispute between the And thereupon the following proceedings parties at said time wliether the payment of were had: “The plaintiff then and there $600 was fully paid or not. I find that from produced to the court the following special December, 1876, down to the time of the findings of fact, and requested the court's commencement of this action, that the de- finding thereon. The court made findings fendant had placed on the premises other as follows: First. Where did McAnulty purand valuable improvements of the value of chase the land in question? Where was the $4,000, making the total value of improve contract made? Was it written or parol ments placed thereon up to said date of the contract? How much money was paid on value of $7,000,-all of which were made it? What was the contract price to be paid with full knowledge of the plaintiff, by his di- for the land? Answer. That all the ques. rection, under the promise from him to make tions asked here above have already been a deed should he ever receive a patent from answered in the findings of fact, as filed by the government. I find that the defendant the court, with the exception of that of, in fact paid to the plaintiff, including the $250 "Where was the contract made?' and that paid the railroad company, more than the the court, to give the exact place, is unable original purchase price of said premises, and to answer, as the contract lasted a day or that there was due him (plaintiff) thereon, two in making it, but was probably consumat the time of the commencement of this mated at Atlanta, on the day that the writaction, nothing. I find that in fact the filing ten lease was made. Second. This question, of the entry of the homestead by the plain- and all the facts appertaining thereto, have tiff was prior to the filing of the map of defi- been already answered in the findings of nite location of the railroad company, and that fact filed by the court to-day. Second. Was in fact his title to said real estate was su- there ever any further contract of purchase perior to that of said railroad company. But for the land in question ever made by the I further find that at the time the defend- defendant McAnulty aside from the one beant settled with the railroad company, and tween McKinnis and McAnulty, made on took its deed to said premises, that this fact June 30, 1874? Answer. This question, and had not been ascertained, and that it was a all the facts appertaining thereto, have all matter of grave doubt to both the plaintiff | been already answered in the findings of and defendant as to whether the plaintiff fact filed by the court to-day. The court could maintain his title as against the rail- understands this question now to be asked road company or not. I find that on the as a conclusion of law, and the conclusion 10th day of September, 1883, a patent was of the court as to the matter of law has alissued by the government to the plaintiff, ready found that the original contract was and the same was filed of record on the 21th changed and modified by parol, which in of November, 1883, and that on February law is equivalent to making a new contract. 19, 1881, the plaintiff commenced the pres- Third. If the court answers the above ques. ent action. I find that the defendant act- tion that there was another contract aside ed in good faith in making all the im- from the last one above referred to, then provements upon said premises, and in the when and where was the contract made, purchase of said title of the railroad com- what was the contract price, and how much pany, and that he followed the plaintiff's money was paid? Answer. I find that there instructions. That I am unable to find from was a modification of the contract, which the evidence and state at this time rental partially consisted in an agreement that the value of said premises during the time it defendant should purchase the outstanding was occupied by the defendant from June title of the Santa Fé Railroad Company and 30, 1877, up to the date of the commence- pay for it, coupled with the agreement that ment of this action, but I find that said if the plaintiff should maintain his action fact is unimportant from my view of the that his title was superior to that of the law in this case."

Santa Fé Railroad Company, that he would And thereon the court made and filed the make him a deed as soon as he got his patfollowing conclusions of law: "(1) I con- ent from the United States government, with clude that the plaintiff is estopped from dis- the further condition that the defendant puting the title purchased by the defendant should continue making valuable improve from the Atchison, Topeka and Santa Fé ments on said premises. I find that this Railroad Company, and from setting up his contract was made in the fall or winter of patent subsequently acquired from the gov- 1876, on the road to Topeka, Kansas, and ernment to defeat the same. (2) That the was made some time after the bringing of title acquired by the plaintiff by virtue of the action of ejectment by the Atchison, patent inured to the benefit of the defend- Topeka and Santa Fé Railroad Company ant, and becaine merged in his title already against McAnulty, and subsequent to Janu. acquired. (3) That the plaintiff has no right ary 12, 1879. It is therefore ordered and to the title to said property which he can decreed by the court that the plaintiff's ao

tion be, and the same is hereby, dismissed, and judgment rendered against the plaintiff for costs, taxed at $224.95.” The plaintiff excepted, and brings the case here. A. M. Lasley, for plaintiff in error.

J. N. Ives, J. W. Brinkerhoff, and J. D. S. Cook, for defendant in error.

HORTON, C. J. (after stating the facts). After this cause was argued and submitted to this court, John W. McAnulty, defendant below, asked permission to confess the alleged errors. Thereupon the Scottish Mortgage Company filed its application to be substituted as defendant in error, and showed that, under a foreclosure sale of a mortgage executed by McAnulty and wife upon the premises in dispute, the company had become the purchaser and owner of the property during the pendency of this proceeding in this court; that, through such foreclosure sale, the former title and interest of McAnulty in the property had become vested in the company. Under the provisions of the Civil Code, which are applicable by analogy to petitions in error, the application of the Scottish Mortgage Company is granted, and that company is substituted as defendant in error as successor in interest of John McAnulty. Civ. Code, 88 36, 40–42.

It appears from the findings of the court that the plaintiff obtained his patent from the government by fraud and perjury. It also appears from the findings that he will be successful in his attempt to commit a gross fraud upon John McAnulty, or his successor in interest, if this court should reverse the judgment rendered against him. Conceding that the contract of purchase made by McAnulty with McKinnis was void, as in violation of the statute of the United States, and also conceding that the railroad company had no valid title to the land on January 7, 1879, when McAnulty paid the company $250, yet, upon the findings, the plaintiff is not entitled to invoke the aid of any court to assist him in making successful his attempt to defraud McAnulty by putting him in possession of land, the title of which he obtained fraudulently from the government. All of the equities of the case are against him: “It is a general rule of law that a man will not be allowed to set up his own illegal acts for the purpose of avoiding his own deed; and with regard to executed illegal contracts, where the parties thereto are in equal wrong, it is a general rule that the law will not aid either of them, but will leave each and all of them where it finds them." Mellison v. Allen, 30 Kan. 382, 2 Pac. 97; Brake v. Ballou, 19 Kan. 397; Tucker v. Allen, 16 Kan. 312. In Weeks v. White, 41 Kan. 569, 21 Pac. 600, Frisbie, who continued the agreement of the first homestead settler with Markham & Byers, from whom Weeks purchased, died before any patent was issued. His widow took the title of the land in dispute in her own right at the death of her husband, and not as bis heir. She made her own

application to the land office to prove up under the homestead act. Therefore Mrs. Frisbie, from whom White obtained his title, was not guilty of fraud and perjury in obtaining her title from the government. White's title was not tainted. The other cases cited by the plaintiff against the judgment rendered are not in all respects founded upon the samesiate of facts as disclosed in this record. The case of Nichols v. Council (Ark.) 9 S. W. 305, and the other decisions referred to from Arkan. sas, ruling that the courts may lend their aid to a party to recover possession of land, after he has transferred his possession and alienated the same to another in violation of the homestead act, are not satisfactory. A man ought not to be allowed to recover real estate in the possession of another by alleging his own fraud and perjury. Courts are not insti. tuted for the purpose of affording guilty parties relief in evading the laws of the country and in deriving benefits from their own illegal acts. "The transfer of property for an unlawful purpose is valid, as between the parties to such transfer." Bump, Fraud. Conv. 436; Railway Co. v. Kennedy (Colo. Sup.) 20 Pac. 696.

It is insisted that the trial court erred in receiving evidence tending to prove that McAnulty purchased the land of plaintiff, and that the lease was executed by the parties as a mere subterfuge to evade the statute of the United States. The general rule is that a tenant cannot be permitted to controvert the title of his landlord under whom he enters into possession, but in this case the lease itself was a fraud upon the government, and was only executed as a pretext to carry out the arrangement under which McAnulty was to obtain possession and title. A lease to real estate, and the transfer of possession thereunder, is a species of conveyance. Coughlin v. Coughlin, 26 Kan. 116; Franklin Land Co. v. Wea Gas, Coal & Oil Co., 43 Kan. 518, 23 Pac. 630. It is next insisted that the trial court committed error in receiving evidence, and that its findings are contrary thereto. The cause was tried by the court without a jury. We have carefully examined the whole record, and find no material error. There was sufficient evidence to sustain the findings. The judgment will be affirmed.

(55 Kan. 90) EDGERTON et al. y. MCMULLAN et al. (Supreme Court of Kansas. April 6, 1895.) EASEMENT-EXTINGUISHMENT BY NONUSER.

Where a grantor conveys a tract of land in fee simple, with a right of way over other, adjacent lands of the grantor, mere nonuser of the easement for 15 years or more is not an abandonment of the right, and does not defeat or take it away. Nothing short of an adverse hostile usage of the servient estate, inconsistent with the rights of the grantee, will start the statute of limitations running to defeat the right of the grantee to the easement.

(Syllabus by the Court.)

Error from district court, Wyandotte coun- that said Mary A. Mather never claimed any ty; James S. Gibson, Judge pro tem.

interest in said land; that when she planted Action by William McMullan and John Mc- said hedge she abandoned and gave up any Mullan against D. M. Edgerton and William right that she had in the easement granted by McCullough. Plaintiffs had judgment, and said deed. (4) That the said Harriet W. P. defendants bring error. Reversed.

McMullan is dead, and that the plaintiffs are This was an action of trespass brought to her sole and only heirs. (5) That, some time test the title of the defendants below (plain. | during the year 1886, plaintiffs built a valu. tiffs in error in this court) to a right of way able fence upon both sides and both ends of over a certain strip of land described in the said land in controversy; that the defendpetition. The case was tried before a judge ants tore down and destroyed said fence, and pro tem. It was admitted at the trial that cut trees thereon; that the damage so done the land was conveyed by patent from the was one dollar. United States to Harriet W. P. McMullan, Conclusions of law: I find, as a concluthat the plaintiffs were her sole heirs, and sion of law, that plaintiffs are entitled to re that the defendant, under a claim of right, cover herein, in the sum and amount of one as president of the Wyandotte Town-Site & dollar, together with their costs." Improvement Company, went upon the strip Thereupon the court rendered judgment in of land in question, and cut down trees for favor of the plaintiffs for one dollar. The the purpose of opening up said strip of land certificate of the judge who settled the case as a road. The plaintiffs introduced a deed states that the action involves the title to from Henry M. McMullan and Harriet W. P. real estate. McMullan to Mary A. Mather, dated Septem- N. H. Loomis, for plaintiffs in error. Hale ber 6, 1860, conveying a four-acre tract of

& Fife, for defendants in error. land therein described, “with the privilege of a road two poles wide on the north and east ALLEN, J. (after stating the facts). The lines of the above-described premises.” The trial court held that the evidence showed an defendants offered in evidence a deed dated abandonment by Mrs. Mather of her right to August 16, 1882, from Samuel F. Mather and an easement over this land. The only eviMary A. Mather to B. D. Hoag, trustee. It dence to support that claim is that showing was admitted that Hoag was trustee for the that she placed a hedge fence along the north Wyandotte Town-Site & Improvement Com- line of the land conveyed to her in fee simpany, to which he afterwards conveyed the ple, which was the south line of the tract in property. There was evidence showing that controversy, thus excluding from her inclothere had been public travel along a part of sure the strip two poles wide, or nearly that the land in dispute for a time; that a hedge amount, and that she never actually used the fence was put out near the north line of the land for a road. The evidence of Dr. Mather, land conveyed to Mrs. Mather, 30 feet from her husband, shows that she had no use for the north line of the McMullan allotment, the roadway, but contemplated laying the about 25 years before the trial of the action, land out into town lots at some time. The The strip was open at the end until about law is well settled that mere nonuser of a two years before the commencement of the right of way granted by deed does not constiaction, when it was fenced up by the plain- tute an abandonment of the right. In Washb. tiffs below. The land had not been occu- Easem. p. 717, the author says: "If the easepied for any purpose, but allowed to grow up ment has been acquired by deed, no length of in trees. The court made the following spe- time of mere nonuser will operate to impair cial findings of fact and conclusions of law: or defeat the right. Nothing short of a use,

“(1) That prior to the 6th day of Septem- by the owner of the premises over which it ber, 1860, Harriet W. P. McMullan was the was granted, which is adverse to the enjoyowner of the land in controversy, in fee sim- ment of such easement by the owner thereof, ple. (2) That on said date she sold to Mary for the space of time long enough to create A. Mather lands adjoining the lands in con- a prescriptive right, will destroy the right troversy, and with the privilege of a road two granted." So in Day v. Walden, 46 Mich. poles wide over and along the land in con- 575, 10 N. W. 26, Judge Cooley, delivering the troversy; that about the year 1869 or 1870 opinion of the court, says: “The right to the the said Mary A. Mather fenced in her land, easement was not lost by the mere neglect to building along the south line of the land in assert, use, and enjoy it for the period of controversy, and the north line of the land twenty years. There is no doubt of this, upthat she purchased from the said Harriet W. on the authorities. The easement was creP. Mullan, an osage orange hedge; that at or ated by grant, as an appurtenance to the about that time there was a fence upon the mill; and there were no conditions or limnorth line of the land in controversy, and up- itations attached which rendered its use necon the east and west ends thereof; that, from essary to its continuance. The grant was that time up to the time the plaintiffs built perpetual, and without conditions; and therethe fence around the land that is hereinafter fore the privilege granted would continue inmentioned, said land was not used as a road, definitely, whether the grantee did or did not but was allowed to grow up with bushes and avail himself of it. An accepted grant untrees. (3) I further find, as a matter of fact, not be waived or abandoned, and the neglect

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