24 Kan. 766 | Kan. | 1881
The opinion of the court was delivered by
On August 17, 1876, the defendants in error (plaintiffs below) filed their petition in the district
The answer contained, first, a general denial; second, a claim of ownership of the premises by the plaintiff in error under and by virtue of a certain tax deed made by the county clerk of the county, under a tax sale for certain delinquent county taxes on the lands — the tax deed having been made to a certain party and the premises sold and conveyed by him to defendant; that said delinquent taxes and interest amounted to the sum of $300; that the tax deed and conveyance had each been recorded in the office of the register of deeds of said county for more than two years before the commencement of the action.
The reply set forth, first, a general denial; second, the statute of limitations, and that any pretended tax deed was void and a cloud on the title of defendant in error. Upon the trial to the court, the defendants in error, to maintain the issues on their part, offered to read in evidence certain title papers, whereupon plaintiff in error objected to any and all evidence under the petition, on the ground that it did not state facts sufficient to constitute any cause of action. The court overruled the objection; the defendants in error then proceeded with their evidence, and offered title deeds showing a chain of title running from the government of the United States to plaintiffs, and proof that they were at the commencement of the suit, and yet are in actual possession of the premises, and had so been in possession since 1859. Defendants in error then offered the record of the quitclaim deed pleaded in their petition, and read it in evidence, with the official certificate of the recording of the same, dated the 9th
Know all men by these presents, That David W. Eaves and Annie Eaves, his wife, of the county of Leavenworth and state of Kansas) parties of the first part, in consideration of five hundred dollars paid by John C. Douglass of said •county and state, party of the second part, the receipt whereof is hereby acknowledged, do hereby convey, remise, release, and forever quitclaim unto the said party of the second part, the following pieces and parcels of land situated in the county of Leavenworth and state of Kansas, to wit: . . . The southwest quarter of section twenty-one (21), township eight (8), range twenty-one (21); . . . (including herewith a number of other descriptions of land.) The interest hereby conveyed and intended to be conveyed, being the same and only the same heretofore conveyed in the same property to said D. W. Eaves by William Smith and Nancy Smith, his wife, Robert Adams and Martha Adams, his wife, and Robert Clarke, by their several attorney in fact John C. Douglass, and also the interest and title derived by and through a tax deed from the clerk of Leavenworth county to D. W. Eaves, •dated May 24, 1869, and recorded on the same day in book 23, pages 250 to 264 inclusive, to have and to hold the above granted premises with all the privileges and appurtenances limited as aforesaid and to the same, belonging to the said party of the second part, his heirs and assigns, to his and their use and behoof forever. In witness whereof they, the said parties of the first part, have hereunto set their hands, this first day of October, eighteen hundred and sixty-nine.
D. W. Eaves:
Annie Eaves.
State op Kansas, County op Leavenworth, ss:
On the first day of October, A. D. 1869, before the undersigned, a notary public in and for said county and state, came D. W. Eaves and Annie Eaves, his- wife, who are personally known to me to be the same persons whose names are affixed to the foregoing deed as grantors, and who executed the foregoing instrument, and duly acknowledged the execution •thereof.
Witness my hand and notarial seal, the day and year last aforesaid. Patrick M. Lyons, Notary Public.
Recorded Nov. 9, A. D. 1869, at 3 o’clock, p. m.
George W. Huston, Register of Deeds.
FINDINGS OF FACT.
First. The plaintiffs were at the commencement of this suit, •and had been for several years, the legal and equitable owners in fee simple, by an unbroken chain- of title from the ■government of the United States, of the land in controversy.
Second. The plaintiffs were at the commencement of this ■suit, and had been for more than fifteen years, in the peaceable and actual possession of the land in controversy.
Third. A quitclaim deed of said land from D. W. Eaves to one John C. Douglass was found recorded in the office of ■the register of deeds of said county, dated the 1st day of October, 1869, and recorded on the 9th day of November, 1869.
CONCLUSIONS OF LAW.
First. The court finds that the plaintiffs are the legal and ■equitable owners in fee simple of the property described in the plaintiffs’ petition in this suit, and that they are in actual possession thereof, and that the claim of an estate and interest of, in and to said premises asserted by said defendant adverse to said plaintiffs’ title and possession, is null and void, and that defendant has no legal or equitable claim to said premises.
Second. That plaintiffs have judgment against defendant, .and also recover their costs in this suit against him.
The first objection presented for our determination is, that the petition is not sufficient under § 594 of the code, because it does not aver actual possession, and does not sufficiently state such a title claimed by the opposing parties as to make it a good petition in equity. A like objection was considered by us at the present term to a petition very similar to the one filed in this action, and the objection was held to be without merit. In that case, an allegation of peaceable possession was held to signify, prima facie, that the owner was in the actual possession. (Cartwright v. McFadden, ante, p. 662.)
■ It is next urged .that judgment should have been given for
The judgment of the district court will be affirmed.