Chicago, Kansas & Nebraska Railway Co. v. Ellis
52 Kan. 41
| Kan. | 1893

The opinion of the court was delivered by

HobtoN, C. J.:

*461- main-iifei¿-oneappKties *45It is contended that the trial court erred in overruling the motion of defendant below to dismiss the appeal. At the time of the condemnation proceedings, the *46legal title to the land over which the right-of-way was condemned was in Susan A. Ellis, the wife of John Ellis. The commissioners made the award to John Ellis. He appealed. If Susan A. Ellis was dissatisfied with the award, or with any part thereof, she should have appealed. Whatever her rights are in the premises, not having appealed, she is absolutely bound by the award. The failure of the commissioners to ascertain that Mrs. Ellis had the legal title or any interest in the land would not prevent her from appealing. (Railroad Co. v.Grovier, 41 Kas. 685.) But we think the court did not err in refusing to dismiss the appeal. John Ellis, according to his petition, was in the actual possession of the land and had a life interest therein. His interest was distinct from that of his wife, Susan A. Ellis. The owners of distinct interests in the same property may appeal separately. (Lance v. Railroad Co., 57 Iowa, 636.) Ellis cannot be denied his right to maintain an appeal because his wife neglected to join therein. If the award of the commissioners was jointly for John and Susan A. Ellis, or if the premises appropriated for the right-of-way were a part of the homestead, it is possible that Ellis could not properly prosecute his appeal without uniting his wife as appellant or making her a party to the proceedings. (Railroad Co. v. Hurst, 30 Iowa, 73; Railroad Co. v. Anderson, 42 Kas. 297.) But, according to the evidence, the land is not a homestead and the award'of the commissioners was not joint.

2- damages °r Upon the trial, the appeal was heard and determined as if John and Susan A. Ellis had each perfected appeals. This was erroneous. Upon the appeal, Ellis was only entitled to recover on the first count of his petition. He can only recover damages for such an interest or estate in the land taken as he can establish in himself. He could not upon the appeal recover anything on account of the interest or claim of his wife, who did not nppeal, although she attempted to transfer and assign to him her alleged claim or interest in the land. It would have been *47better, probably, for both John and Susan A. Ellis to have appealed, but for some reason Susan A. has neglected or refused so to do. Having so neglected or refused, she cannot found her appeal upon the action taken by her husband, John Ellis, even though, according to the petition, she has since his appeal transferred in writing her alleged interest or claim.

wife, when not to testify. As the cause must be reversed for the error noticed, it is important to refer to evidence improperly admitted. Ellis attempted to show his interest in the land, upon the trial, by a verbal agreement between himself and his wife. (Gen. Stat. of 1889, ¶¶ 7162, 7164, 7166.) Neither a husband nor wife is permitted to testify concerning any communication made by one to the other during the mar-J 0 riage. (Civil Code, § 323, subdiv. 3.) This is admitted; but it is answered that the railway company did not make sufficient objections upon the trial to the oral communications. An examination of the record shows that the attention of the court was called directly to the evidence as a conversation between husband and wife. We quote:

“Ques. Who paid the consideration for the conveyance? Ans. I paid it myself.

“Q. Well, state under what circumstances that conveyance was made in that way; did you have any agreement with her (his wife) beforehand in regard to it? [Defendant objects-to the question, for the reason that it is incompetent, irrelevant,, and immaterial; calling for a conversation, agreement and understanding had between the plaintiff and his wife. Objection overruled. Defendant excepts.] A. We had an agreement beforehand that I was to have the land my lifetime, the same as if the deed was in my name; that I was to use it. for whatever purpose that I saw fit; that I was to pay all expenses of improving the land.

“Q. Was that agreement in writing? A. No, sir. [Defendant objects to the answer last made by the witness about the conditions of the agreement, and asks the court to strike it out, so far as it has been given, as incompetent, irrelevant,, and immaterial, and for the reason that the witness has stated that the agreement or understanding was not in writing, and it must necessarily have been a parol communication between the parties. Objection overruled, and motion refused at this-*48time, to which ruling of the court defendant excepts.] • A. I was to use the land for whatever purpose that I saw fit, and that I was to derive all benefits from the land; that I was to have all I raised, the stock that run on the land, etc.; it was to be my land my lifetime, the same as if the deed was in my name, and that I deeded her the land in case of my death, that she would have something to sell to support the family.

Q,. This agreement that you had with your wife, was that had about the time of the purchase of the land? [Objected to, for the reason that it is incompetent, irrelevant, and immaterial. Objection overruled. Defendant excepts.] A. Yes, sir; just before this.”

Subsequently, when the husband testified more in detail of the communications between himself and wife, the evidence was objected to as incompetent. (Railway Co. v. Usher, 42 Kas. 637; French v. Wade, 35 id. 391; Chandler v. Dye, 37 id. 765.)

The judgment of the district court will be reversed, and the cause remanded for a new trial.

All the Justices concurring.