Brumbaugh v. Schmidt

9 Kan. 117 | Kan. | 1872

The opinion of the court was delivered by'

Kingman, C. J.:

1. Findings; evidence. The defendant in error, claiming to be the owner of an undivided one-half of a quarter-section of land in- Marshall county, brought his action to settle the question as to the title between himself and plaintiff in error. The pleadings admit the ownership of one-half of the tract to have been in Mrs. L. A. Woodley, widow of A. D. Woodley deceased. The defendant in error has her title by virtue of a deed dated Oct. 7, 1869. The plaintiff in error claims title by virtue of a sale made to him by Magill, as the agent of Mrs. Woodley, on the 5th of November 1868. The whole controversy turned upon whether Magill was such agent, and was authorized to make a sale of Mrs. Woodley’s interest in the land. On this point the evidence is conflicting; and as to numbers, the witnesses are about equally balanced. The cause was tried by the court, and special findings were made, among which is the following: “3d. That said Magill had not authority to sell said lands at the time said contract of sale was made.” Under such circumstances this court will not disturb the finding of fact'by the court below, and a review of the evidence to show where the preponderance lies would be a fruitless labor, unless the preponderance was decided.

2. Testimony not objected to, not reviewed. One of the witnesses whose deposition was taken in Virginia answered one of the questions from a memorandum written by the witness some time before the J deposition was taken. No question was made on the admissibility of this evidence in the court below, and therefore there is no question for this court to .decide. Witnesses testified as to the contents of letters. Undoubtedly this was not proper testimony, but there was no objection made to its admission, and therefore no cause of complaint. An objection was made at the time of the taking of the depositions, but was not brought to the attention of the court, and is therefore deemed to have been waived.

Again, it is said that plaintiff in error was entitled to “MagilFs tax title, whatever it was.” But not a word appears in the evidence showing that he had any such title.

We have thus briefly noticed the errors to which our attention has been called, and not finding them well founded the judgment is affirmed.

All the Justices concurring.