34 Kan. 29 | Kan. | 1885
The opinion of the court was delivered by
This was.an action of forcible detainer, brought before a justice of the peace of Clay county, by Robert Docking against J. A. D. Frazell, to recover the possession of a leasehold interest in, and a frame building on, lot 1, in block 43, in the city of Clay Center. The facts of the case, as shown by the evidence, appear to be substantially as follows: On May 1, 1880, A. R. Keeler owned the property, or at least the lot upon which the building is situated, and on that day he leased the same for five ycai’S to A.- S. Pierce. The nature of this lease is not disclosed. On August 14,1880, A. S. Pierce sold and conveyed, by deed duly executed and acknowledged, to Frank Piquerez—
“All his’interest, claim and demand in and to so much of lot 1, in block 43, in Clay Center, Clay county, Kansas, as is occupied by the building known as the ‘Lindell House/ and extending from Lincoln avenue, in said city, the width of said building, to the alley on south end of said lot, which said party of the first part holds under and by virtue of a lease from A. R. Keeler, running from May 1,1880, to May 1, 1885, being 42 feet north by 140 feet deep.”
The name of the building was afterward changed to the “Eagle House.” On September 1, 1880, Piquerez, with his family, took possession of the property. On July 1, 1881, Piquerez executed a chattel mortgage on the house and the furniture therein to Joseph Ruot, to secure seven promissory notes for $2,000, and filed such mortgage in the register’s office, July 27, 1881. Who Joseph Ruot was, or is, the evi
On March 16,1883, Piquerez commenced an action against W. T. Bishop and Samuel Langworthy in the district court of Clay county, to enjoin them from selling the Eagle House, on the ground that it was real estate, and not subject to execution from a justice’s court, in which action it was stated by the attorney of Piquerez, under oath, that the property was real estate, and not personal property. The injunction was first granted temporarily, but was afterward, and on May 11,1883, made perpetual. On June 5, 1883, an attachment was issued in an action then pending in the district court of Clay county, in favor of Christmas and against Piquerez, and was levied upon the property in controversy to satisfy said claim of Christmas, of $79.50. In June or July, 1883, Anthony, as the attorney for Ruot, sold the Eagle House to Ruot for $600, under the last-mentioned chattel mortgage. On September 22,1883,
The order of sale, the notices thereof, and the deed, described the property as “a leasehold interest in, and one frame building, known as the ‘ Eagle House,’ situated on, lot No. 1, blpck 43, in the city of Clay Center, Clay county, Kansas;” so that Docking of course got whatever interest in the property that Piquerez then owned. On February 13, 1884, this action of forcible detainer was commenced before a justice of the peace of Clay county, as aforesaid: Judgment was rendered in the justice’s court in favor of the plaintiff and against the defendant, and the defendant appealed to the district court;.- where, on May 13, 1884, a trial was had before the court without a jury, and judgment was rendered in favor of the defendant and against the plaintiff, and a motion for a new trial made by the plaintiff was overruled. On September 15, 1884, a case for the supreme court was duly settled and signed, and on October 13,1884, such case was brought to the supreme court, duly attached to an appropriate petition in error.
“ One two-and-a-half-story frame hotel building, located*35 on lot No. — of block 43 of the Clay Center town site, and known as the ‘Eagle House;’ also all the furniture contained therein, consisting of twenty bedsteads and bedding therefor, one cooking stove, four heating stoves, one-parlor set, dishes, chairs, carpets and all other furniture not particularly described or enumerated herein, but now in possession of the said party of the first part, and kept in said building, as above set forth.”
"We think the decision of the court below is erroneous. Presumptively, the house in question is a part of the real estate, and no sufficient evidence was introduced to show the contrary. The judgment of the court below will therefore be reversed, and the cause remanded for a new trial.