22 Kan. 678 | Kan. | 1879
'The opinion of the court was delivered by
The facts in this case are substantially these:. James Tolley, father of the plaintiff below (defendant in error here), settled upon a quarter-section of government land, and made such improvements and had such residence thereon, that at the time of his death he was entitled to enter
Gatton claimed that John H. Tolley and all the other-heirs of James Tolley, deceased, had been divested of all title and interest in the land by virtue of certain guardian- and administrator’s deeds, and also certain voluntary conveyances, and offered proof to that effect.
The court below rejected the guardian’s deed as incompetent evidence, on the ground that the proceedings in the-probate court in the matter of the sale of the land described therein, which occurred prior to the execution of the deed,, should first be introduced in evidence. As to the other-deeds, the court instructed the jury that, upon the evidence-in the case, the land in controversy when James Tolley died was the homestead of America Tolley and the minor children,, and could not be sold, alienated, partitioned or divided until the widow married again, or all of the children arrived at-the age of majority, and that any deed executed by the widow or any of the heirs of James Tolley, deceased, for any portion-of the land, before the widow married again, or all of said, children arrived at the age of majority, was absolutely void-
The court committed no error in rejecting the deed of America Tolley, as guardian of the minor children of James Tolley, deceased, of date of January 3, 1872, purporting to-convey the title of the minors in the premises in dispute. There is. no statute mating a guardian’s deed prima facie evidence that the law has been observed in its execution, and the proceedings and power under which it was executed, ought to have'been shown before the deed was offered. Sec. 18, ch. 46, Gen. Stat., providing that the same rules that are prescribed in the sale of real property by executors and administrators, after the granting of the order of sale, shall be observed in sales under the provisions of this act, as far as-applicable, is not broad enough to make guardians’ deeds presumptive evidence that the directions and requisitions of the law have been in all respects complied with; therefore they stand in a different relation from that of executors’ or administrators’ deeds. Perhaps this is a mistake that the legislature ought to rect-ifjq but until guardians’ deeds are placed upon the same footing with executors’ and administrators’ deeds, as evidence of their recitals,, the prior proceedings in the probate court upon which they rest must be first shown, before a court is compelled to receive such a deed as a valid conveyance of real estate. In this case no such evidence was presented, and therefore the deed was properly excluded.
We cannot indorse with like favor the instructions of the court. We have lately had occasion, in Dayton v. Donart,
Notwithstanding the claim of John H. Tolley to the whole of the premises in his petition, he may recover any part or portion of the land to which the proof may show he is entitled. (Everett v. Lusk, 19 Kas. 195.) But his recovery will be limited to the interest he has in the land, and his damages in proportion to such interest. The damages for withholding the premises, and for the rents and profits, can only be such as have accrued within the three years prior to the commencement of the action. While such cause of action
The judgment of the district court will be reversed,- and the case remanded for a new trial in accordance with the views expressed in this opinion.