Ermul v. Kullok
3 Kan. 499
Kan.
1866
Check Treatment

By the Cowrt,

Crozier, C. J.

It is a well established rule of this court, that the verdict of a jury will not be disturbed if there is any testimony to sustain it; but where there was no evidence which would warrant it, where the subject is properly presented, the obligation to set it aside is imperative. We have carefully searched this record for some testimony which would connect the plaintiff in error with the contract set out in the petition, but have been unable to find a word pointing in that direction; and not only so,, but the testimony of the plaintiffs below clearly and unequivocally shows that she had nothing whatever to do with the making of the contract.

How the jiuy could have so mistaken the evidence, is beyond our comprehension, unless it be attributed to the great hardship, a different finding would bring to the claimants.

For the reason indicated above the judgment must be *502reversed. But there is another question made, upon which, as it must inevitably arise upon another trial, it is proper to make a decision. It is claimed by the plaintiff in error that she was not at the time the contract was made, “ the owner ” of the lots upon which the building was erected, within the meaning of the mechanic’s lien law, and in this view we coincide with the counsel. The law of 1855, gave the widow a right to a life estate in one-third of the deceased husband’s real estate. It did not vest any portion of the title in her. She could convey nothing to a stranger. Her grantee could maintain no proceeding to have any portion allotted to him. It merely gave her a personal right to claim a life estate in one third. This right was wholly unassignable. She might relinquish it to the owner of the fee, or she might assert it in her own behalf, but until she did assert it, she was not the' “ owner ” in any sense. When, in a proper proceeding, one third was assigned to her, and not until then, did she become the owner.

Applying these views to the case at bar, it is apparent there was nothing to which the lien would attach. The husband had died seized of the lots in question, leaving three children who inherited them. No attempt had ever been made, so far as the record shows, by the widow to have her dower therein assigned to herself. She therefore never did become the “ owner,” and very manifestly nothing would pass by a sale of her supposed interest.

The judgment is reversed and the cause sent back with instructions to the court below to sustain the motion for a new trial, and proceed with the cause.

All the justices concurring.