15 Kan. 9 | Kan. | 1875
The opinion of the court was delivered by
This was an action in the nature of an action of ejectment, for the recovery of certain real property, to-wit, lot 27, block 45, in Leavenworth city. The case was submitted to the court below, without a jury, and the court made separate findings of fact and conclusions of law. And while some of the findings of fact are sustained by but very little evidence, yet we think they are all sustained by sufficient evidence. Or at least, we cannot say that any material finding of fact is so far unsustained by evidence that wé should reverse the judgment of the court below on that account.
The judgment of the district court was in favor of the plaintiff below, Mrs. Rafferty, and against the defendants below, Duffey and the Millers. Is this judgment correct upon the facts, as found by the court below? It s§ems that the legal title to the property in controversy is still outstanding in the original patentee, William H. Russell; and therefore the only questions now to be determined, as between these parties, are, has the plaintiff Mrs. Rafferty any kind of right to said- property ? and if so, who has the better right
From the foregoing it would seem that the plaintiff ought to recover in this case. Even if Cort obtained from Mrs. Oliver her dower interest in the property in controversy, still that dower interest had terminated- before Duffey purchased the property from Cort, and long before this action was commenced. Duffey never obtained any interest in said property, legal or equitable. He never had anything more than a bare naked possession, derived from the plaintiff’s guardian, through Cort and Lynn. Now under these circumstances, even if the plaintiff had no title, legal or equitable, to said lot, yet still it would seem that she ought to recover. Her possession through her guardian was prior in time to that of the defendants, and the defendants hold under her possession. Now it is a general rule that as between parties claiming title, mere priority of possession gives precedence, where no better title can be shown as belonging to either. And this rule will certainly apply to this case, provided the plaintiff has failed
There are other grounds suggested by plaintiff in error for the reversal of the judgment below, but we do not think that they are tenable.
The judgment of the court below is affirmed.