67 P. 864 | Kan. | 1902
The opinion of the court was delivered by
The question presented for our determination is the legal effect of the oral agreement between the parties, under which possession was taken Improvements made, and taxes paid, by John Asbury for a period of about fourteen years. On the one hand, it is contended that this agreement contravenes the provisions of the statute of frauds and perjuries, and as a consequence is void; that defendants are, therefore, merely tenants at will and subject to eviction by the grantee of Doctor Gilmore, plaintiff in this action. On the other hand, it is contended that the acceptance of the proposition made by Doctor Gilmore, the taking possession of the premises, the making of valuable and lasting improvements upon the property, the payment of taxes thereon, etc., for the period of about fourteen years,
We are inclined to agree with the latter contention, and for two reasons : First, while it is not urged upon us by counsel, yet we are at a loss to understand how this action can be maintained, in any event, in the face of the undisputed facts found in the record. The statute of limitations pertaining to actions of forcible entry and detainer is two years. In the case at bar the possession of defendant was continuous for a period of almost fourteen years. This court, in Alderman v. Boeken, 25 Kan. 658, held:
“Where a person has been in the actual and visible possession of real estate for over two years under equitable color of title, no action of forcible detainer can be maintained against him : First, because of such possession for over two years ; and, second, because he holds the possession with color of title.”
Again, we are of the opinion, even should it be held that the statute of limitations is not pleaded but waived, that the equities arising out of the entire transaction, as gathered from the terms of the oral agreement, its acceptance, the possession taken under such agreement, the character and extent of the improvements made, the long duration of possession so taken, the payment of taxes on the property, all with the consent, approval and acquiescence of the holder
In the case of Schwindt v. Schwindt, 61 Kan. 377, 59 Pac. 647, this court held:
“Satisfactory proof that a father donated, in parol, a tract of land to his son when he became of age, as he had done with the other children, that the son accepted the gift and took and held possession of the land for years, that he made lasting and expensive improvements thereon and otherwise changed his condition on the faith of the gift, is sufficient to take the case out of the operation of the statute of frauds and to warrant a judgment giving to the son complete title to the land.”
In the case of Alderman v. Boeken, supra, it was said :
“Actions of forcible entry and detainer, or forcible detainer, are not to be encouraged against persons who have long been in possession of real estate, supposing that they had some kind of interest therein, and who have made improvements thereon, whatever the rights or interest of such persons may be.”
Considering the close relationship and friendly relations existing between Doctor Gilmore and the family of Asbury for many years, the acts and conduct of all parties, the declarations made by Doctor Gilmore, the owner of the legal title, as to his intentions in regard to the land, the extent and lasting character of the improvements made on the property by the Asbury
The extent of this equitable interest is not before us and is not proper subject-matter for our determination in this action or in the absence of the parties claiming thereby. In this view of the case it becomes unnecessary to notice separately the assignments of error, as all relate to the ultimate contention here determined adversely to plaintiff in error.
Perceiving no error in the record, the judgment is affirmed.
