40 Kan. 758 | Kan. | 1889
Opinion by
This was an action in ejectment, brought in the district court of Douglas county, to recover real property in the city of Lawrence. The action was tried by the court, a jury being waived, and findings of fact and conclusions of law were made, and a judgment rendered in favor of the defendant. To reverse this judgment a petition in error was filed in this court. The material facts are all embraced in the special findings of the court. These, with the conclusions of law, are as follows:
“On the 15th day of July, 1864, Benjamin Saunders became the owner of the premises in controversy, and under him both plaintiff and defendant now claim title. The defendant claims under the-following facts: About December 1, 1868, Benjamin Saunders died intestate, seized in fee of these premises. On May 26, 1869, Pauline Dickson, as plaintiff, commenced an action in partition in this court against Matilda Saunders, defendant therein, for partition of said lands, alleging the decease of Benjamin Saunders, and that plaintiff and defendant were his sole heirs-at-law. Such proceedings were had in such action that on August 24, 1869, a judgment for partition of said lands was rendered, and thereupon the lands were sold by the sheriff of this county under said judgment, and purchased by Michael Maher, which sale was duly examined and confirmed by this court at the November term, 1869, and deed ordered, which was accordingly made December 31, 1869, by S. Walker, sheriff, to Michael Maher for $870 consideration. In the petition, deed, and all other proceedings, the land is described as the east half of the northwest quarter of block 9, North Lawrence, instead of addition No. 9. Michael Maher took immediate possession of the lands in controversy — that is, the east half of the northwest quarter
“ The plaintiff claims title under the following facts: On the 22d day of March, 1871, administration was granted upon the estate of Benjamin Saunders by the probate court of this county, John Q. A. Norton being appointed administrator. April 28, 1873, David C. Beach was appointed in place of Norton; and on January 10, 1874, A. J. Reid was appointed in place of Beach, resigned. Mr. Reid as such administrator filed his petition in the probate court on the 27th day of January, 1874, for leave to sell said lands to pay the debts of said estate. On the 23d day of February, due notice having been given, the petition was heard, and an order duly made directing the sale of the property at private sale for the payment of debts for not less than three-fourths of its appraised value. It was duly appraised at $500, and on the 10th day of June, 1876, the probate court modified its order so as to require the property to be sold at public sale ‘ under the former appraisement.’ On January 10,1877, the administrator sold the lands at public sale to Rouley Crouch for $125. And upon report thereof being made, the sale was confirmed by the probate court, and a deed ordered to be made to the purchaser accordingly, which was made March 15, 1877. An administrator’s deed was thereupon, on the 20th day of May, 1878, made accordingly, signed and acknowledged by the administrator in usual form. This deed was not delivered otherwise ¿han as hereinafter stated. John Q,. A. Norton was the probate judge of this county from January, 1873, to January, 1879; James M. Hendry was the probate judge from January, 1879, to January, 1881; and A. H. Foote has been probate judge ever since. On the 8th day of October, 1881, Rouley Crouch, for the sum of $25 to him paid by the plaintiff, executed and delivered to the plaintiff a general quitclaim deed, conveying to the plaintiff all his right, title and interest in the lands in question. On the same day James M. Hendry, the former probate judge, had in his possession the administrator’s deed above referred to, and claimed to hold the same for the pay
' “On the original recorded plat of North Lawrence there is a subdivision marked ‘9/ being a square plat bounded by streets and alleys. This has been known and described in conveyances usually as ‘ Block No. 9,’ and is a different tract from ‘Addition No. 9,’ which appears upon the recorded plat as an addition to North Lawrence, and contains forty acres. The part in question here contains five acres. It appears that a mistake in fact was made in the petition, and all proceedings in the partition suit hereinbefore referred to, in describing the premises as being in ‘Block 9,’ and that ‘Addition No. 9’ was intended.”
“ CONCLUSIONS OK law.
“1. The agreement to purchase, and the confirmation of the sale by the probate court, did not vest the title in the purchaser, Rouley Crouch. That could only be done by a proper conveyance.
“2. The deed of the administrator could only take effect upon the delivery. While delivery of a deed may be made to a stranger, for the use of the grantee, still no presumption that it is intended for the grantee arises from the mere delivery of the deed to such stranger, without any declaration by words or otherwise of such intention. The delivery of the deed by the administrator to Judge Hendry, without any declaration of this intention to have it take effect as his effectual deed, is not a sufficient delivery thereof, and no presumption arises that Judge Hendry was himself authorized to deliver it. The consideration not having been paid, and. no delivery of the deed shown, it could not operate to vest title in Rouley Crouch, or in his grantee.
“3. The defendant being in possession, and the plaintiff failing to show title in himself, judgment must be entered against the plaintiff and in favor of the defendant, for costs.”
It will be seen from these findings and legal conclusions, that
By the Court: It is so ordered.