Crimmins v. Morrisey, 36 Kan. 447

Crimmins v. Morrisey

36 Kan. 447 | Kan. | 1887

The opinion of the court was delivered by

Valentine, J.:

Mary Ellen Crimmins, the plaintiff in this action, who was formerly Mary Ellen Sheridan, alleged *451in her petition in detail, but in substance as follows: She and her sister, Catherine Julia Sheridan, inherited from their father, Thomas Sheridan, deceased, certain lands in Washington county, Kansas, among which was the land now in controversy. She and her sister were then little girls; but on March 4, 1883, she arrived at the age of eighteen years, and on August 4,1883, while still unacquainted with business and a single woman, was induced by the fraud and false representations of the defendants, Ellen Morrisey and Michael Morrisey, who were then and are now husband and wife, to execute a warranty deed to Ellen Morrisey for the plaintiff's interest in said land. Such interest was worth at the time about $1,500; but the defendants in consideration therefor gave to the plaintiff only one pony mare worth about eighty dollar’s, and a promissory note executed by Michael Morrisey for $150, which note was and is utterly worthless, the said Michael Morrisey being utterly insolvent; all of which consideration she has tendered back to the defendants, and desires to return the same to them; and the plaintiff prays in her petition that the aforesaid deed be set aside, and that she be restored to all that she has lost thereby.

The defendant Ellen Morrisey answered to this petition, setting forth as a third defense thereto in substance as follows : The land in controversy never belonged to either the plaintiff or Thomas Sheridan, but belonged to the defendant Ellen Morrisey. In 1863, it, along with other land, was entered by Thomas Sheridan as a homestead, under the act of congress approved May 20, 1862, to secure homesteads to actual settlers upon the public domain. In August, 1866, he died, leaving the defendant, Ellen Morrisey, then Ellen,Sheridan, as his widow. Ellen Morrisey continued to occupy the laud as his widow, and afterward made the requisite proof of settlement, occupancy, residence and cultivation to procure the title to the land, and on May 10, 1870, a patent for the land was issued by the United States to her, which vested in her the fee-simple title to the land; that she is still the owner *452thereof, and resides upon and occupies the same; and that the plaintiff never had any interest therein.

The plaintiff replied, and in the second paragraph of her reply alleged in substance as follows: The patent for the land was not issued to Ellen Morrisey, but was issued in terms to “the heirs of said Thomas Sheridan, deceased,” and she gives a copy of the patent, which not only shows that the patent was issued on May 10, 1870, by the United States for the land in controversy, to “the heirs of said Thomas Sheridan, deceased,” but also shows that the said final proof was made by “Ellen Morrisey,” not Ellen Sheridan. The plaintiff and her sister were and are the only surviving children and issue of the said Thomas Sheridan, deceased; and are also the children of Ellen Morrisey. In 1871, under the act of the legislature relating to descents and distributions, (Gen. Stat. of 1868, ch. 33,) the said land, with the consent of all the parties, including Ellen Morrisey, was divided- between Ellen Morrisey and the plaintiff and her sister, and Ellen Morrisey took possession of that portion allotted to her, and the plaintiff and her sister, by their guardian, took possession of that portion allotted to them, and continued in the possession and occupancy thereof up to March 4, 1883, when the plaintiff became of age; and during all that time the plaintiff and her sister, by their guardian, paid all the taxes on the land and made lasting and valuable improvements thereon; all with the knowledge and consent of the defendants. To this paragraph of the plaintiff’s reply the defendant Ellen Morrisey demurred, upon the ground that it did not state facts sufficient to constitute a cause of action, or to constitute a reply to her answer; which demurrer was by the court sustained.

The pleadings, stated again and stated very briefly, are substantially as follows: The plaintiff alleged that she owned some land by inheritance from her father, worth $1,500, and that the defendants fraudulently induced her to execute a deed of conveyance therefor to Ellen Morrisey, for a grossly insufficient consideration, and asked to have the deed set aside. Ellen Morrisey answered, alleging that the plaintiff never *453owned or had any interest in the land in controversy; but that the same belonged to the defendant Ellen Morrisey, and therefore alleging inferentially that the plaintiff could not have been defrauded by the defendants in inducing her to execute a deed to that which she did not own, and which already belonged to Ellen Morrisey, and that even a pony mare worth only $80 and a worthless promissory note for $150 were ample consideration for the execution of such a deed. The plaintiff replied to this answer, attempting, by a detailed statement of all the facts of the case, to make it appear that she did own the land in question, and therefore that she was in fact defrauded by the defendants fraudulently inducing her to execute the deed.

We think the plaintiff’s reply is a good reply to the defendant’s answer; and if the facts stated in the plaintiff’s reply are true, the plaintiff ought to recover. The only question, however, presented to this court by counsel is whether the facts set forth in the plaintiff’s reply show that she really and in fact had any interest in the land in controversy. We think the facts so show; and this without reference to the question whether the patent should have been issued to Ellen Morrisey or to the heirs of Thomas Sheridan, deceased, and without reference to the further question whether the foregoing partition ■ proceedings as judicial proceedings were void or valid. (Newkirk v. Marshall, 35 Kas. 77.) If the patent was rightfully issued to the heirs of Thomas Sheridan, deceased, then of course the plaintiff owned or at least had an interest in the property in controversy; and the commissioner of the general land office holds that the patent under such circumstances should be so issued. In 2 Lester’s Land Laws, 265, Hon. Joseph S. Wilson, commissioner of the general land office, uses the following language:

“ Where the widow of a deceased settler marries again, before the expiration of five years, it is held that if she continues the settlement and improvement of the claim to the expiration of the period fixed by the statute, the fee inures to the heirs, and final proof may be made in the name of the said heirs.”

*454Homestead; partition; widow estopped from disputing children’s title. But even if the patent should not have been issued to the heirs of Thomas Sheridan, deceased, but should have been issued to Ellen Morrisey alone, still it was issued to the heirs, and it thereby conveyed to them the legal title to the land now in question; which heirs include the plaintiff as well as her sister and Mrs. Morrisey. Also, if the proceedings partitioning the land between Mrs. Morrisey and the plaintiff and her sister were legal, then again it would follow that the plaintiff owns the land in controversy, or at least an interest therein. But even if it should be held that the patent should have been issued, and if it had in fact been issued to Mrs. Morrisey alone; and even if the partition proceedings, as judicial proceedings, were entirely void, still, under the other facts of the case — the fact that the title originated in the manner it did, the fact that the property was partitioned by the consent of all the parties as it was partitioned, and the fact that the plaintiff and her sister, by their guardian, afterward took the possession of the property in controversy under the allotment made in the partition proceedings and held the possession thereof with the consent of Mrs. Morrisey for more than twelve years, paying all the taxes on the land and making lasting and valuable improvements thereon — we think the title to the property in controversy is placed in the plaintiff. (Newkirk v. Marshall, 35 Kas. 77.) And the defendant Mrs. Morrisey is now estopped from questioning the plaintiff’s title. This question as to who owned the land when the deed in question was executed has been argued elaborately by counsel, and indeed it is about the only question argued or presented by counsel.

The judgment of the court below will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.