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of the grantee to enjoy the easement would move them to one of the free states, and purbe no more significant in its bearing upon his chase for them stock, implements, and utenrights than the neglect to enjoy the freehold sils needed for farming, and procure for them to which the easement was appurtenant." To some land, the title of which should be setthe same effect are Riehle y. Heulings, 38 N. tled in such way that the emancipated slaves J. Eq. 20; Lindeman v. Lindsey, 69 Pa. St. and their children and issue should "have a 93. There is no evidence in the record of common use and benefit of the said land dur. any act of the plaintiffs inconsistent with the ing the time they may live on it; but if any of right of the defendants and their grantors un- them shall remove from said land, and cease til the strip was fenced up at the end. Even to live upon it, then in that case the right and this could hardly be said to amount to such title of such of them as shall remove and cease a hostile assertion of right adverse to the de- to live upon it shall be determined, and he, fendants as would set the statute of limita- she, or they shall no longer hold right to any tions running against their deed. The de part of said land.” A fund was set apart, fendants neither had nor claimed to have, by with which the executor was to purchase the virtue of the deed to Mrs. Mather, the full land, and also pay the expenses of the removal title to the land. They were under no obli- of the emancipated slaves to the free state. gation to use the easement until they desired Shortly after the making of the will, Joshua to do so, nor were they bound to take any ac- Pennell died in North Carolina, leaving eight tion to protect their rights so long as there slaves, emancipated by the will, who were was no occupancy of the land inconsistent generally known by the name of the testator, with them. While the deed from Mrs. Math- a part of whom were removed to Kansas, in er to Hoag does not specifically mention the accordance with the directions of the will, right of way, it grants the land and appur- and some of them sold themselves back into tenances thereto. There is no question that slavery, while others declined to avail themthis easement was appurtenant to the land, selves of the provisions of the will, and never and passed to the grantee of Mrs. Mather. came to Kansas. In 1869 a partition suit was The judgment is reversed, with direction to | brought in the district court of Doniphan enter judgment, on the special findings and county, in which all of the Pennells who were undisputed facts of the case, in favor of the named in the will, and who had been brought defendants. All the justices concurring. to Kansas, were parties. In that proceeding

the land which was purchased for them, and

upon which they had resided until that time, (55 Kan. 78)

was partitioned among them, and the parties PENNELL et al. v. FELCH.

to the proceeding took possession of the por(Supreme Court of Kansas. April 6, 1895.) tions respectively assigned to them in severPARTITION-RES JUDICATA-APPEAL-PRESUMP- alty, and thereafter occupied the same. Un

der this proceeding, Augustus Pennell obtain1. In an action of partition, where the title ed the land in controversy in this action, and to land and the right to divide and dispose of the same in severalty are put in issue or might

afterwards, in 1877, upon a mortgage given have been litigated therein, the judgment ren

by him and his wife, a judgment of foreclosure dered is binding upon all the parties to the was rendered, under which the land was approceeding and those holding under them, as

praised and sold. The purchaser at the sherto such issues. 2. In the absence of the testimony, or of

iff's sale took possession of the land, which a special finding upon a material question in the was continued until January 8, 1881, when it case, it will be presumed that the facts dis- was conveyed to the plaintiff below, who reclosed in evidence were such as to support the general finding and judgment of the court.

mained in possession of the land for a time; (Syllabus by the Court.)

but subsequently some of the Pennells gained

possession of the land, and hence she comError from district court, Doniphan county;

menced this action, naming as parties Charles R. C. Bassett, Trial Judge.

Pennell, Newton Pennell, and Felix Pennell, Action by Hattie C. Felch against Charles

as well as several other parties who disclaimPennell and others, to recover land. Plaintiff

ed, or were dismissed from the action. The had judgment, and defendants bring error.

trial court found that the plaintiff was enAffirmed.

titled to the possession of the land, and also S. L. Ryan, for plaintiffs in error. Albert gave' judgment against Charles, Newton, and Perry, C. D. Walker, and J. L. Berry, for de- Felix Pennell for $105, for the rents and proffendant in error.

its of the land during the time they were in

possession of the same. JOHNSTON, J. This was an action to re- It is manifest that the rights of the parties cover a 40-acre tract of land in Doniphan under the will and under the purchase of land county, which is a part of a body of land pur- made for the Pennells by the executor were chased in 1859 and 1860 for persons who, be- / adjusted and determined in the partition suit fore that time, had been the slaves of Joshua in 1870. That proceeding involved an interPennell, of North Carolina. In 1855 Joshua pretation of the will, and the kind of title acPennell made a will by which he gave to all quired under the will, and the conveyances of his slaves their freedom; and he directed that were executed. The judgment in that acthat his executor, Joshua Winkler, should re- tion is conclusive upon the parties thereto,

TIONS.

not only as to the matters actually determined, but also as to every other matter which might have been litigated and decided in the action. All of the plaintiffs in error in this case were parties to that proceeding, except Felix Pennell. He is a son of Sophronia Pennell, who was a party to the proceeding, and to whom a share of the land was allotted. The record does not affirmatively show that he was a party, nor does it show that he had been born when the partition was made. The testimony is not here, and the findings are silent upon that subject. In this state of the record the general finding will be treated as a finding of every special thing necessary to sustain the judgment, and is conclusive in this court on all doubtful or disputed questions of fact. We cannot assume the exist. ence of facts that would impair the validity of the judgment, but should rather presume the facts to be such as are not inconsistent with those specially found, and yet will sustain the judgment that was given. It does not appear that any request was made for other and more specific findings, and none of those given can be said to be inconsistent with the judgment. Kellogg v. Bissantz, 51 Kan. 418, 32 Pac. 1090. The land in controversy was allotted, and each of the parties has received the share apportioned to him. The acceptance and disposition of the share so allotted estops any of such parties from questioning the adjudication and division that was made of the property. The judgment of the district court must therefore be affirmed. All the justices concurring.

Error from district court, Washington county; F. W. Sturges, Judge.

Action by Lyman Lacy, Jr., to recover from A. L. Comstock, as executor of the estate of Bernard Rodgers, rent money for the use of land previously purchased by him. Defendants had judgment, and plaintiff brings error. Affirmed. On July 5, 1887, Bernard Rodgers owned a tract of land and rented the same for three years from March 1, 1888, at an annual rental of $200, for which three promissory notes were executed by the tenants and delivered to Rodgers. On December 27, 1887, Bernard Rodgers gave a portion of the land to his son, Charles D. Rodgers, by an instrument of which the following is a copy: "The grantor, Barnett Rodgers, also known as Bernard Rodgers, a widower, now of the city of Havana, in the county of Mason and the state of Illinois, for and in consideration of one dollar and for mutual love and affection, in hand paid, conveys and warrants to Charles D. Rodgers, of said city of Havana, of the county of Mason and the state of Illinois, the following described real estate, to wit: The southwest quarter of the northeast quarter, and the northeast quarter of the southeast quarter, both in section thirty-two (32), town four (4) south, range five (5) east, containing in all 80 acres, more or less, including all improvements and buildings of every nature and kind in or upon the same.

The grantor herein reserves, however, all the rents, issues, and profits arising from said premises during the lifetime of him, the said grantor, and also the privilege and right to dispose of said premises by deed, during his lifetime. In all other respects this deed of conveyance is absolute. Situated in the county of Washington, in the state of Kansas; hereby releasing and waiving all right under and by virtue of the homestead exemption laws of said state. Dated this 27th day of December, A. D. 1887. Barnett Rod. gers.” This instrument was acknowledged. and also filed for record with the register of deeds. On February 23, 1889, Bernard Rod. gers died testate, and A. L., Comstock was duly appointed as the executor of his last will and testament. His will, among other bequests, contained the following provision: “Also that my daughter, Ellen Morrissey. have the rent of my farm for three years, 1888, 1889, and 1890, two hundred dollars each year, after paying the above legacies and my funeral expenses, and all other just debts.” On February 28, 1889, Charles D. Rodgers conveyed the land given to him by Bernard Rodgers in his lifetime to persons who on March 1, 1890, conveyed the same to Lyman Lacy, Jr. The parties to whom the land was rented used and occupied the premises under the lease, and had paid two of the rent notes before the commencement of the action. Comstock, as executor, collected the note due March 1, 1890, for $200, which he has in his possession, and he also holds, as such executor, the last rent note, due March 1, 1891. At the death of Bernard

(55 Kan. 82)

FRANKHAUSER v. EDWARDS. (Supreme Court of Kansas. April 6, 1895.)

Error from district court, Osage county; William Thomson, Judge.

Action between N. Frankhauser and Myra A. Edwards. From the judgment rendered, Frankhauser brings error. Atlirmed.

Pleasant & Pleasant and R. C. Heizer, for plaintiff in error. B. F. Hendrix and Ellis Lewis, for defendant in error.

PER CURIAM. We find no error in the record in this case, nor anything requiring especial mention. As the case of McNamara v. Culver, 22 Kan. 661, declares the law applicable to the facts appearing in this record, the judgment is atlirmed.

(55 Kan. 86)

LACY V. COMSTOCK et al. (Supreme Court of Kansas. April 6, 1895.) DEED-CONSTRUCTION OF RESERVATIONS.

Where R. conditionally gave a tract of land to a relative by an instrument which reserved to R. not only the rents. issues, and profits of the land while he lived, but which also reserved to him the right to dispose of the land during his lifetime, it was competent for him thereafter to bequeath to another relative the use of the land, and the rents and profits of the same, for a period of time extending two years after his death.

(Syllabus by the Court.)

Rodgers these notes were in possession of not seek a trial and judgment under the proviand were taken charge of by the executor as a

sions of section 184 of the Civil Code, he is not

thereby precluded of his full remedy upon the part of the personal estate. All of the legacies

bond. mentioned in the will have been fully paid 2. Where the bond in a replevin action, exby the executor. Upon these facts the dis- ecuted by the plaintiff with sureties, provides trict court ruled that Lacy was entitled to

that the plaintiff “shall duly prosecute the ac:

tion,” the defendant is entitled to recover all no part of the rent money for which he had

the damages he has sustained, upon a breach sued, and gave judgment in favor of the of that condition. defendants. The plaintiff brings the case

3. The amount of damages in an action on

a replevin bond depends materially on the right here for review.

of the plaintiff to the property.

If the plainOmar Powell, for plaintiff in error. Joseph

tiff in a replevin action fails to prosecute the

same, and it is not determined in that case that G. Lowe, for defendants in error.

the right of possession of the property belongs

to the defendant, then, in an action on the bond, JOHNSTON, J. (after stating the facts). if it appears that the plaintiff (defendant in reIt is contended that the instrument by which plevin) had no title or right of possession to the Bernard Rodgers conditionally gave 80 acres

property when the replevin action was com

menced and dismissed, he has sustained only of land to Charles D. Rodgers operated as a nominal damages, and can recover only such conveyance of the land in praesenti, and damages. that as the use or issues and profits are in- (Syllabus by the Court.) cidental, and follow the land, Charles D. Error from district court, Wyandotte counRodgers and his grantee are entitled to the ty; 0. L. Miller, Judge. rents of the same, or at least to so much of

Action by W. H. Bliss against A. W. Litthe rents as accrued after the death of Ber

tle. Plaintiff had judgment, and defendant nard Rodgers. The instrument, as will be brings error. Reversed. seen, is not an absolute conveyance. Ber

W. H. Bliss commenced his action against nard Rodgers not only reserved the rents, A. W. Little on the 28th day of July, 1890, issues, and profits arising from the land

alleging in his petition that on August 21, while he lived, but he also reserved to him

1889, he was the owner and in peaceable posself the right to dispose of the land during session of certain personal property; that his lifetime. It is plain that the transfer

Cornelia Mackey, falsely pretending he was was not to be effective until his death, and

indebted to her in a large sum, to wit, $237, it is urged with much plausibility that the and that the same was secured by mortgage instrument is testamentary in its character.

on the property, on August 21, 1889, deReed v. Hazleton, 37 Kan. 321, 15 Pac. 177; manded possession of the same from him, Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450.

which he refused to comply with; that thereBut, whether it is or not, it is manifest that

upon she commenced an action in replevin the purpose of the grantor was to reserve

against him, in the district court of Wyanthe title to and dominion over the land while

dotte county, for the possession of the prophe lived. It was his own property, and he erty; that she and defendant executed a was at liberty to give it upon such terms and

replevin bond in the usual form; that the conditions as his judgment and desires might

property was taken from him by the sheriff, prescribe. As was his right, he reserved to

and delivered to Mrs. Mackey; that the achimself the use of the land, and also the con

tion stood regularly for trial; that on De. trol and disposition of the same.

It was

cember 16, 1889, it was dismissed for want competent for him to have transferred the

of prosecution, Mrs. Mackey not appearing; entire interest in the land by gift, grant, or

that judgment was rendered against her for bequest, and certainly he had ample power the costs; that, since the action was disto make a like transfer of the use or rents

missed, Mrs. Mackey has not returned the arising from the same. While the title and

property to him, nor paid him the value dominion of the property remained in him,

thereof,-and praying judgment for $4,039, he bequeathed to his daughter the rent of

with costs. On August 18, 1890, defendant the farm for the three years for which it

answered the petition, denying each and evhad been leased. This act was certainly

ery allegation not expressly admitted. The within the reserved power of Bernard Rod

answer admitted, however, the execution of gers, and sufficient, under any view, to give

the replevin bond; that the action brought to the daughter the use of the land and the

by Mrs. Mackey was dismissed by the court rent notes which had been given for the

in the absence of herself and her attorneys, years mentioned. We think the conclusion

and that judgment was rendered against her of the trial court was just and correct, and

for costs; that she did not return the proptherefore its judgment will be affirmed. All

erty, nor pay the value thereof. And the the justices concurring.

allegation was added that she had paid all

the costs, and that neither the title to the (50 Kan. 9)

property nor the right of possession was ad. LITTLE V. BLISS.

judicated in her action, nor any return of the (Supreme Court of Kansas. April 6, 1895.)

property awarded to Bliss. Defendant fur. REPLEVIN-Action on Bond-DAMAGES.

ther alleged in his answer that Bliss, on April 1. Upon the dismissal of a replevin action

8, 1889, for value received, executed and de at the costs of the plaintiff, if the defendant does livered his promissory note to Mrs. Mackey,

v.39P.no.10465

payable one month after date, in the sum were instructed, that the note and mortgage of $237, with interest thereon from maturity were executed by W. H. Bliss to Mrs. C. at the rate of 10 per cent. per annum; that Mackey on the 8th of April, 1890. The note the note was executed in and payable at was for $237, payable May 8, 1889, with 10 Kansas City, in the state of Missouri; that per cent. interest after maturity. The morta copy of the note was attached to the an- gage to secure the note contained the followswer, as a part thereof; that, to secure the ing provisions: “The party of the first part payment of the note, Bliss mortgaged to Mrs. [W. H. Bliss] hereby agrees to keep the propMackey all of the personal property men- erty constantly insured for the benefit of the tioned in the petition; that a copy of the second party (Mrs. Mackey); and if the note, mortgage was attached to the answer, as a or any part of the same, or any interest therepart thereof; that the mortgage provided, if on, shall not be paid according to the terms the indebtedness should not be paid accord- thereof, or if the goods and chattels, or any ing to the terms of the note, Mrs. Mackey of them, shall not, in the opinion of the party might take possession of the mortgaged of the second part, be properly cared for, or 'property, and remove and sell the same, in shall, in the opinion of the party of the secany manner she should think fit, and, out ond part, become deteriorated or damaged, or of the proceeds, pay the amount then due if the same, or any part thereof, shall be reon the note, $15, attorney's fees, and all nec- moved or sold, or any interest therein be in essary costs of taking and caring for the any manner disposed of, or any attempt be property. It was also alleged that on Au- made to remove or sell the same, or any part gust 21, 1889, the mortgage indebtedness thereof, by the party of the first part, or any was past due; that Bliss then owed Mrs. other person, or if any one shall levy on said Mackey thereon $237, with interest from July goods and chattels, or any part thereof, then 8, 1889; that Mrs. Mackey on August 21, and in any of the above events all of the note 1889, and several times prior and subsequent not then paid shall become immediately due to July 8, 1889, demanded of Bliss the pos- and payable, and the party of the second session of the property, which he refused, part, or her heirs, executors, administrators, and that by reason of the premises she was, assigns, or authorized agents, may enter upat the date of the commencement of the re- on the premises where the goods and chattels plevin action, entitled to the possession of may be found, and take possession of the the property, to sell and dispose of it to satis- same, and may remove, sell, and dispose of fy the mortgage indebtedness and expense of all the property, or any part thereof, in any sale; that the replevin action was based on manner they shall think fit, without notice to the note and mortgage; that, after obtaining any one, and, out of the proceeds thereof, possession of the property in the replevin pay the amount then due on the note, toaction, Mrs. Mackey caused the same to be gether with $45 attorney's fees, and shall also sold, under and by virtue of the chattel mort. pay out of the proceeds of the sale all the necgage, for the best price that could be ob- essary costs incurred in pursuing, searching tained in Kansas City; and that the same for, taking, removing, keeping, storing, and brought $198 only. There were other alle- selling the property, and may pay all the gations in the answer, relating to the dis- liens thereon having precedence over this missal of the replevin action, and abandon- mortgage, and shall pay the remainder, if ment by Bliss of his demand in the action any, to the party of the first part, or his legal for trial of right of property, or for any or- representatives.” The jury allowed Bliss, as der for return to him of the property. Plain- the value of the property, $273. They found tiff filed no reply to this answer, because, as there was due Mrs. Mackey, when the restated by his attorney on the trial, he did plevin suit was commenced, $129.09. Under not consider a reply necessary. Trial had the instructions of the court, they deducted November 7, 1890, before the court, with a this $129.09 from $273, leaving $143.91, to jury. The jury returned a general verdict which they added interest thereon at the rate for the plaintiff for $154.34, and also special of 6 per cent. per annum from August 22, findings of fact. The defendant moved the 1889; making $154.34, the amount of the gencourt to render judgment in his favor, upon eral verdict. the pleadings and special findings, for nom- Under the conceded facts and the findings inal damages only. This motion was over- of the jury, when Mrs. Mackey brought her ruled. Defendant filed his motion to set aside action, on the 21st of August, 1889, to recover the judgment, for various grounds therein possession of the goods and chattels in constated, which was also overruled. Subse- troversy, she was entitled, under her morta quently judgment was rendered upon the ver- gage, to the possession of the same. On Dedict for the plaintiff for $154.34. The de- cember 16, 1889, when the replevin action fendant excepted, and brings the case here. was called for trial, Mrs. Mackey was also

entitled, under her mortgage, to the posses. Muckle & Winn, for plaintiff in error. Hale sion of the property. It appears, when the & Fife, for defendant in error.

case was called, W. H. Bliss was present by

his attorney, but neither Mrs. Mackey nor her HORTON, C. J. (after stating the facts). attorneys appeared. Thereupon the case was Upon the trial it was conceded, and the jury dismissed, and the costs taxed to her. These

error.

ror.
error.

she paid. When the replevin action was dis- sidered as a part of such case made unless it missed, Bliss, under the provisions of section

is actually incorporated therein. 184, Civ. Code, might have demanded that

(Syllabus by the Court.) the court proceed to inquire into the right of Error from district court, Cloud county; F. property, and the right of his possession W. Sturges, Judge. thereto. This was not done. The replevin Action by George L. Parkhurst against the case was not tried upon its merits. Bliss First National Bank of Clyde. There was failed to claim a return of the property, and judgment for defendant, and plaintiff brings only a judgment for costs was rendered.

Affirmed, Notwithstanding the dismissal, Bliss was not

Kennett, Peck & Matson, for plaintiff in er. precluded of his full remedy upon the bond.

Pulsifer & Alexander, for defendant in One of the conditions of the bond was that the plaintiff "shall duly prosecute the action.” This is a separate and independent condition. JOHNSTON, J. George L. Parkhurst Upon breach of that condition, Bliss was en- brought an action against the First National titled to recover all the damages he had sus- Bank of Clyde, Kan., alleging that he was tained. Manning v. Manning, 26 Kan. 98.

the owner of certain personal property which As Bliss was indebted to Mrs. Mackey upon he had advertised to be sold at public auchis note, secured by the mortgage, for about tion on February 15, 1889, and that when $130, she was entitled to the possession of the the prospective purchasers had assembled, property at the time her action was dis

and the sale was about to proceed, the demissed. The amount of damages in an ac- fendant bank, by its agents, appeared and tion on a replevin bond, must depend mate- warned said purchasers that the bank was rially upon the right of the plaintiff bringing the owner or had mortgages upon the prophis action to the property. But, as it appears erty advertised to be sold, and that Parkthe plaintiff had no legal title or right of pos- hurst had no right to sell the same, and that session to the property, he sustained no ac- those who purchased the property would actual damages by the refusal of Mrs. Mackey quire no title thereto. It was alleged that to deliver the same to him. Cobbey on the this interference prevented the sale of a Law of Replevin states the rule thus: “Where large part of the property, and that that the defendant had no title, he can only re- which was sold was disposed of at a much cover nominal damages on the bond.

In an

lower price than it would have sold for but action by the obligees against the obligors in for the action of the defendant. The defenda replevin bond, where the title to the proper- ant bank admits attending upon the sale and ty was not determined in the replevin action, warning purchasers of its interest in the and the title thereto and the right of posses- property, claiming that it held mortgages upsion are in a person other than the obligees, on the same which were unpaid. A further they are only entitled to nominal damages." defense was that in a former action brought Section 1355. Brookover v. Esterly, 12 Kan. by Parkhurst against the bank to recover 149; Wells, Repl. p. 234, $ 458; 2 Suth. Dam. penalties for a refusal to discharge the chat46; Smith v. Wuiting, 100 Mass. 122.

tel mortgages held by the bank covering the On August 6, 1890, the defendant below of

same property which the bank warned profered, in writing, to confess judgment for one spective purchasers at the public sale was dollar and costs. As plaintiff was entitled to covered by its mortgages, in which action the judgment on the bond for nominal damages bank recovered a verdict and judgment only, he can recover no costs since the date of against Parkhurst. It is claimed that in that that offer. It ought to be observed that the action it was fully litigated and determined plaintiff below has not appeared in this court -First, that Parkhurst was not the owner of by brief or otherwise. Judgment of the dis- the property in controversy; and, second, trict court will be reversed, and the cause re- that the mortgages held by the bank then manded, with direction to that court to ren- were unpaid. The trial court sustained the der judgment upon the findings of fact in fa- defense of res adjudicata, and directed a vervor of plaintiff below for one dollar, and the dict in favor of the defendant. An exception costs accruing to August 6, 1890. The subse- was taken to this ruling, and the cause has quent costs will be taxed against him. All been brought here for review. the justices concurring.

The defendant insists that the record in the case is so defective that the rulings of the trial court upon the question of res ad

judicata cannot be reviewed. From the rec(55 Kan, 100)

ord it appears that all of the proceedings in PARKHURST v. FIRST NAT. BANK OF

the first case were introduced in evidence in CLYDE.

this case, for the purpose of showing what (Supreme Court of Kansas. April 6, 1895.)

had been adjudicated in the former case, but

no part of such proceedings have been inAPPEAL-SUFFICIENCY OF RECORD.

corporated in the case made before us. An The record in one proceeding in the su

attempt was made to bring them to the at. preme court cannot be made a part of a case made in another proceeding in the same court

tention of this court by reference to another by a mere reference, nor can anything be con- cause between the same parties in the su

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