Critchfield v. Kline

39 Kan. 721 | Kan. | 1888

The opinion of the court was delivered by

Valentine, J.:

This case has once before been in this court. (Critchfield v. Kline, 30 Kas. 537.) When it was here before, the judgment of the court below — which was in favor of the defendant and against the plaintiff — was reversed, and the cause remanded for the reason that there was no evidence to prove that the building stood upon any portion of the ground in controversy, as was alleged in the defendant’s answer. At the present time there is no such lack of evidence, nor lack of any evidence to prove the allegations of the defendant’s answer, and therefore if the judgment of the court below is to be reversed again, it must be reversed for some other reason than a lack of evidence. It is now clearly and conclusively shown that it was the intention of Critchfield and Funk, Kline’s predecessor, that Critchfield should convey to Funk a rectangular piece of ground 22 feet wide north and south, and 150 feet long east and west, out of or from lot No. 10, block 7, in the city of Oskaloosa; and it was also intended that the east 80 feet of this piece of ground should be a certain strip of ground 22 feet wide north and south, and 80 feet long east and west, covered by the building then on the lot, and that the remainder of the land conveyed should be a strip of ground 22 feet wide north and south, and 70 feet long east and west, immediately west of the building. At the time when the deed from Critchfield to Funk was executed, Critchfield had the unquestionable right to sell and convey to any person all this land; but when he executed the deed of conveyance to Funk, he failed to make it cover this precise piece of land. The deed purported to convey the north 22 feet of the lot, which left a narrow strip of land 26 inches in width north and south, and 150 feet long east and west, off from the south side of the land intended to be conveyed, which narrow strip was not conveyed; and this narrow strip is the land now in controversy. The court below rendered judgment so as to give this strip of land to Kline, the successor in interest of Funk, and gave to Critchfield a strip of land 26 inches wide along the entire north side of the lot, which last-mentioned strip the deed purported to convey to Funk. We cannot say that this decision of the court below is erroneous. It gave to Kline the exact piece of land that was intended to be sold and conveyed by Critchfield to Funk. The only mistake of the parties at the time of the conveyance was that they believed that the north boundary-line of Critchfield’s land, and of lot No. 10, was 26 inches further south than it actually was. They were not mistaken as to where the building stood, or as to the amount of land which Critchfield owned, or as to the land which was intended to be conveyed, or as to the amount of land which Critchfield had the right to convey, or as to the shape of the piece of land which was intended to be conveyed. As before stated, the only mistake was with reference to the exact location of the north boundary-line of Critchfield’s land. We think that Funk and his grantees, including the defendant in this action, have a right to the land awarded to the defendant by the court below. We do not understand that there is any objection to the form of the judgment rendered in this case. Indeed, if the j udgment were simply a judgment against the plaintiff for costs, it would have the same effect as the present judgment, except that by such judgment the plaintiff would not get the 26 inches of land on the north side of lot No. 10, which he now gets by the present judgment. The defendant is not complaining of this judgment.

The judgment of the court below will be affirmed.

All the Justices concurring.