76 P. 839 | Kan. | 1904
This litigation involves the title to a tract of land now forming a part of the city of Argentine, comprising about thirty-three acres, upon which over 200 houses are erected. It originated in an action of ejectment brought by C. M. Campbell against the occupants of the tract. Two persons named as defendants, R. R. Dunbar and Elizabeth Benns, are, in effect, plaintiffs, and will be so treated. The other defendants (of whom there are over 200), so far as practically important, are the Kansas Town Company, in whose behalf the tract was platted as a part of Mulvane’s addition to Argentine, and its grantees. Several other defendants, claiming under a different title, have filed a cross-petition in error in this court, but no brief has been submitted in their behalf, and their contentions will not be considered. A jury was impaneled to try the case, but at the conclusion of the evidence the court directed a verdict for the defendants. A judgment was rendered accordingly, which plaintiffs now seek to have reversed.
The tract in controversy was a part of the lands set apart for the Shawnee tribe of Indians by the treaty of May 10, 1854. On December 28, 1859, it was patented by the United States to Nancy Whitefeather, a member of the tribe, the patent containing the usual provision forbidding its alienation by her without the consent of the secretary of the interior. On February 25, 1864, she conveyed to Brooking Jeffries, but her deed was not approved by the secretary of the interior until January 13, 1898. On March 29, 1865, Brooking Jeffries conveyed to Elizabeth Sharp, now Elizabeth Benns, who is one of the plaintiffs, and, so far as it affects the decision of the case, she may be con
On December 4, 1867, Elizabeth Benns executed a bond for a deed, or contract, by which she agreed to convey the land to Adelaide Y. Shearin for the consideration of #200 in cash and #400 to be paid in one year. An agreement was included that she would put the purchaser in possession within seven days, and Adelaide V. Shearin and her. husband went into possession of the land. On March 12, 1872, they conveyed to J. P. Kinney, and the record shows a series of deeds from Kinney to the town company, concerning which no question is raised. The plat dividing the land into lots and blocks was filed January 2, 1882. On January 13, 1898, the deed from Nancy White-feather to Brooking Jeffries was approved by the secretary of the interior.
Upon the facts so far presented the issue between the parties is whether the bond for a deed is now to be regarded as an effective transfer of title from Elizabeth Benns to Adelaide V. Shearin. Defendants claim that the ordinary effect of such an instrument under the circumstances stated, where the grantor has title, is to vest the equitable ownership in the grantee, leaving to the original owner only the naked legal title' as security for the unpaid purchase-money ; that although Elizabeth Benns, when she executed the bond for a deed, did not herself have title, because the deed from Nancy Whitefeather under which she claimed had not
Leaving out of consideration for the moment the questions arising from the disability of Nancy White-feather to make a deed without the consent of the secretary of the interior, and treating her deed to Brooking Jeffries as valid at the time of its execution, we think the bond for a deed, coupled with the possession of Adelaide V. Shearin, was sufficient to vest the equitable title in her, and to prevent Elizabeth Benns from recovering the property in an ejectment action, notwithstanding the non-payment of the purchase-price. (Courtney v. Woodworth, 9 Kan. 443; Burke v. Johnson, 37 id. 337, 15 Pac. 204, 1 Am. St. Rep. 257; Jones v. Hollister, 51 id. 310, 32 Pac. 1115; Usher v. Hollister, 58 id. 431, 49 Pac. 525.)
The first paragraph of Courtney v. Woodworth, supra, reads:
“Where a party sells land, executes to the purchaser a title-bond therefor, receives a part of the purchase-money, takes several promissory notes for*318 the deferred instalments of the purchase-money, puts the purchaser in possession (time not being of the essence of the contract by the terms of the bond itself), he cannot, nor can his grantee who purchases with knowledge of the facts, maintain ejectment for said land merely because the party claiming under the title-bond for want of funds fails to pay the balance of the purchase-money.”
In Usher v. Hollister, supra, it was said :
“A person may not enter into an agreement to convey land, put his vendee in possession under such contract, receive a large portion of the purchase-money and give time for the payment of the remainder, attach no conditions of punctuality of payment to the transaction nor otherwise reserve a right of forfeiture or rescission, tolerate the possession of such vendee for a. score of years, the while the land is being improved and growing in value, and then, by taking the law into his own hands, re-enter possession, and resist ejectment by his vendee upon the sole ground of the non-payment of the balance of the purchase-money, even though an action for the collection of such purchase-money has become barred by the statute of limitations.”
It is contended by plaintiffs that the possession of Adelaide V. Shearin and subsequent occupants of the-land was not held under the bond for a deed but under an independent title. This matter will be referred to later. For the present, it is sufficient to say that the bond for a deed contained an express agreement to put her into possession within seven days ; that she went into possession ; that all subsequent occupants claim under deeds executed by her ; and that Elizabeth Benns never sought to regain possession until the commencement of this action in March, 1898. These considerations we regard as sufficient to bring the case within the principle of the authorities cited.
These conclusions require the affirmance of the judgment ; however, another feature of defendants’ title is claimed by plaintiffs to have some bearing upon the matters already discussed and to require the determi
The question whether, after the approval of the deed of the original Indian owner, Elizabeth Benns could have maintained an action to charge the land with any part of the purchase-price remaining unpaid, or to procure the rescission of her'contract in the event of non-payment, is not raised.
The judgment is affirmed.