27 Kan. 122 | Kan. | 1882
The opinion of the court was delivered by
These facts stand out plain from this statement: In 1877> Gore bought from plaintiffs in error the land upon which they resided, and paid in full all that he agreed to pay. By a mutual mistake the land was improperly described in the deed. Mrs. Conaway, upon discovery of the mistake, sought to correct it. Her husband refused to rectify the error, and from that time to this has been carrying on a litigation expensive and annoying in respect to the title and possession of the land, with the party who in good faith had bought and paid the full contract price. In fairness and good faith there never ought to have been any litigation. Conaway, on discovery of the mistake, should have acted honorably, as his wife sought to do, and executed a deed for the land which he had intended to convey. The litigation as to title has been closed. Gore’s title has been finally adjudged good. As to possession, the district court has' again decided in favor of Gore, and unless there is substantial error manifest in the proceedings, justice requires that this litigation as to possession should also stop, and the judgment of the district court be affirmed. Further, it may be remarked, that months before this last trial in the district court the Conaways fled the state, in the night-time, and at the time of the trial their whereabouts were unknown even to their attorneys.
A second objection, or series of objections, runs to the refusal of the court to instruct that an equitable title could not be set up as a defense in this case. It is well to see upon this question exactly what instructions the court gave, and what it refused. It charged: “No question of title is involved in this suit. It makes no difference what are the rights of the parties to the premises. The only question for you to decide is, were the plaintiffs in peaceable possession of the premises, and did the defendants forcibly eject them and take possession without legal authority, and forcibly hold it against them ? And if this be true, and plaintiffs gave legal notice, then plaintiffs will be entitled, to recover, and you should find defendants guilty.” And again: “ When a person purchases a piece of land, the presumption is that he is entitled to receive the possession until the contrary is shown. The court instructs the jury that a party who purchases' land, and obtains title by virtue of. such purchase, is entitled to immediate possession, unless an agreement exists to the contrary; and that a party entitled to possession of lands and premises may legally obtain the same without notice, if done peaceably, and when once so in possession may retain the same even by force.” The instructions refused are the following:
“1. An equitable title cannot be set up as a defense before a justice of the peace in an action of forcible entry; and as this is an appeal from a justice of the, peace, this court cannot allow an. equitable title to be considered' as a defense. (Ohio Digest, vol. 1, p. 533.) •
“ 3. If you find plaintiffs had the legal title to said premises up to April 16,1878, and were in peaceable possession of the same, and then that defendants entered said premises and ■ held the same by force, and the plaintiffs gave proper legal notice to defendants to quit, then plaintiffs are entitled to recover in this action.”
' Counsel for plaintiffs in error would seem, from the instructions they asked, to hold that equitable titles can never be offered in evidence and never considered in actions of this kind, while legal titles may be. We do not understand that any such distinction exists in this state; in so far as title may ever be shown in actions of this kind, an equitable title is as competent as a legal. Every defense which a party may have to an action brought against him, whether such defense be legal or equitable, he may interpose in that action, and is not driven to another court or another form of action to asserts.uch defense. Of course this question may be important in this case, because it is not pretended that the defendants had legal title until long after their entry and possession. At
One other question is raised by counsel: it is insisted that the verdict is contrary to the evidence. In reference to this question, it may be remarked, as heretofore intimated, that the jury not only found a verdict of not guilty, but in answer to special questions they acquitted each defendant separately
The defendant Reed was not present at the time possession was taken by Gore, nor until the next day, when he entered into possession as tenant and representative of Gore. At that time, if we lay aside the manner of acquiring possession, Gore had the right of possession, as well as the title.
Again, Mrs. Conaway, who was the only person present and in actual possession, vacated and surrendered possession to the defendant Gore. Whatever wrong she may have committed against the rights or possession of her husband, the fact is, that, being the only person present and in actual possession, she voluntarily abandoned it, and turned the premises over to Gore.
Other minor matters might be mentioned, but without noticing them in detail, we repeat what we have once said, that, while we have some hesitation, we have concluded that there is enough to support the verdict of the jury. (Hoffman v. Harrington, 22 Mich. 52; People v. Fields, 1 Laus. 222; McDougall v.Sitcher, 1 Johns. 42; 2 Starkie on Ev. 330.)