38 Kan. 98 | Kan. | 1887
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by McNaughton against Mrs. Bryan and children, to recover two hundred and twenty acres of land, situated in Miami county. The facts in the case as claimed by Mrs. Bryan and children are as follows: On the 31st day of August, 1865, Edward Coughlin purchased of Joseph Johnson, a member of the Shawnee tribe of Indians of Kansas, the lands in controversy, paid him the purchase-price thereof, and
On August 25, 1883, McNaughton obtained a conveyance of the land from Hiram Johnson, the alleged sole heir of Joseph Johnson and Mary Johnson his wife. Upon the face thereof the consideration was two thousand six hundred and forty dollars. This deed was approved January 5,1884, and on March 4,1885, McNaughton commenced this action against Mrs. Bryan and her children. The answer of Mrs. Bryan and children set forth the original purchase and occupation of the land by Edward Coughlin ; the contract with Oakman to perfect their title, for the sum of one hundred dollars and expenses ; that, in violation of this agreement to obtain title for Mrs. Bryan, he had procured title to be taken in the name of McNaughton, and that Oakman was interested in the land with McNaughton, and was a necessary party for a full and final determination of the controversy; that she tendered into court the sum of one hundred dollars, and offered to pay the reasonable expenses incurred in obtaining such deed, and asked that Oakman be made a party to the suit, which was accordingly done; that the title was taken in the name of McNaughton for the purpose of cheating and defrauding the defendants out of their land; that McNaughton had full knowledge of all the facts. The answer closed with a prayer for judgment in favor of Mrs. Bryan and her children, that they be declared the owners in fee simple of the premises in dispute, and rightfully in possession thereof; that McNaughton holds the title in trust for them, and that he be adjudged to execute and deliver to them a deed for the premises. ■
Upon the trial, after Mrs. Bryan and children rested their case, McNaughton moved to strike out and take from the jury all the testimony introduced on behalf of the defendants tending to prove the allegations of their answer. The court refused the motion, but intimated that he would settle the questions presented in his instructions, and stated that it was unnecesr
“ In this case, the defendant charges that these lands were procured by the plaintiff and one Oakman, under circumstances known to both the plaintiff and Oakman, and that they are held in trust for the defendant. In order to create a trust in this action, you must find either, first, that the purchase-money for this land, or some portion of the purchase-money, was paid by the defendant to Oakman, or to the plaintiff in this action; or, second, that the contract between the defendant and Oakman, in which she claims a right to these lands, was in writing.”
Upon the instructions of the court, the jury returned a verdict for McNaughton, and assessed his damages at one dollar. Judgment was entered accordingly. Mrs. Bryan and her children complain of the instructions of the trial court and the judgment rendered upon the verdict, and bring the case here for review.
We have commented upon the facts in this case as claimed on the part of Mrs. Bryan and children, assuming for the purposes of this case only, that the facts testified to are true. In another trial, the disputed questions of fact will be submitted to the court; and we do not wish to be understood from our comments, that the trial court or the jury are to find the facts as claimed. When the case goes to the jury again, they will be the sole judges of the weight of the evidence, the credibility of the witnesses, and of all disputed questions of fact.
The judgment of the district court will be reversed, and the cause remanded for a new trial.