99 Kan. 579 | Kan. | 1917
The opinion of the court was delivered by
Louis L. Hinnen and Edwin L. Hinnen brought ejectment against Noah Artz for a strip of land containing about two acres, lying along the east side of the southwest quarter of the southwest quarter of section 18, in township 24, of range 4 east. The plaintiffs recovered and the defendant appeals.
I. The original petition, filed May 12, 1915, in describing the tract in controversy by metes and bounds, gave as the place of beginning the northeast corner of the southeast quarter of the southwest quarter of the section. On June 25, 1915, the plaintiffs were allowed to amend by substituting the northwest corner for the northeast, as the starting point. Objection is made to the allowance of the amendment on the ground that it substantially changed the cause of action, because the amended petition claimed an entirely different tract from that originally described. The change could not have prejudiced the defendant unless the bar of the statute of limitations had fallen after the action was begun and before the amendment was made. While the defendant claimed title by adverse possession no contention was made, nor could any have been justified under the evidence, that the fifteen-year period had expired between May 12 and June 25, 1915. Therefore no error could have been committed in allowing the amendment. (Blair v. Craddock, 87 Kan. 102, 123 Pac. 862.)
2. The whole of the section above described was owned by Wartman F. Joseph at the time of his death. By his will he left one tract to several grandchildren, under whom the defendant claims; another to other devisees; and the remainder of the section to relatives through whom the plaintiffs derive title. The defendant maintains that the devise to his grantors included the strip now in dispute; but if it did not, that he
“To my grandchildren that are the children of my son, William I. Joseph, living at the time of my death, the southwest quarter of the southwest quarter of section 18, township 24, south of range 4, east, in .Butler county, Kansas, in fee simple, share and share alike, to be sold and the proceeds of said sale thus equally divided.
“To my grandchildren that are the children of my son Moses N. Joseph, living at the time of my death, and Ella Garrison their half sister, if she be living at the time of my death, the northwest quarter of the northwest quarter of section 18, township 24, south of range 4 east in Butler county, Kansas, to be sold and the proceeds of said sale to be divided equally between said grandchildren. To my son, James Joseph and his wife Nancy Joseph, my grandson W. W. Kemper and his wife Laura Kemper, all of section 18, in township 24, south, range 4 east in Butler county, Kansas, less the 40 acres hereinbefore willed to the children of William I. Joseph, and the 40 acres willed to the children of Moses N. Joseph and to Ella Garrison. Said part of section 18 in township 24 south of range 4 east in Butler county, Kansas, consisting of about 560 acres, to be divided into two parts equal in value and including the improvements, one of said parts I hereby bequeath to my son James Joseph and his wife, Nancy Joseph, and the other to W. W. Kemper and his wife, Laura Kemper.”
3. The defendant complains of the admission in evidence of the record of proceedings in the probate court by which the executors sought a construction of the will. Assuming that the evidence was incompetent it was not prejudicial. It is said that the jury was given to understand that the probate
4. The defendant also complains of the admission in evidence of the record of the deeds under which he derived title, and which described the land conveyed as the southwest quarter of the southwest quarter of section 18. He contends that the fact that the deeds described only this tract might have been regarded by the jury as an argument against his claim to have acquired title by a boundary agreement and by adverse possession, whereas it had no legitimate tendency in that direction, be cause one who has extended his boundaries by agreement or adverse possession customarily transfers his title to the land, including the accession thereto, by a deed describing only the tract to which he has a paper title. Granting the existence of such a custom, we think it was proper that the facts concerning the chain of title should all be shown. If the deeds had undertaken to convey the added strip it would have been a circumstance tending to support the theory of a continuous claim of title. The negative evidence afforded by the omission of the deeds to refer to the strip was not conclusive against the defendant, but was proper to be considered in connection with other circumstances in determining the issue, and the court so instructed the jury. (2 C. J. 177; 1 Ency. of Ev. 679; Ency of Ev. 1915 Supp. 13,1.)
5. A similar question is raised by an objection to evidence that the property claimed by the defendant was carried on the tax rolls as the southwest quarter of the southwest quarter of the section, containing thirty-seven acres, and that that claimed by the plaintiffs was carried as the ordinary legal subdivisions, containing 560 acres. It is argued that the owners of the land are not responsible for the descriptions appearing on the tax rolls. They, of course, are not concluded by them, but the circumstance that one who claims an accession by a boundary agreement and by adverse possession suffers- the
.6. Various objections are urged to portions of the testimony as giving conclusions of the witnesses. Some of the questions and answers were, perhaps, technically objectionable on that ground. But upon the whole inquiry the facts were developed with such fullness that no prejudice could have resulted. (Insurance Office v. Woolen-mill.Co., 72 Kan. 41, 82 Pac. 513.)
7. It is contended that a demurrer to .the plaintiffs’ evidence should have been sustained on the theory that it showed that a boundary line in accordance with the defendant’s claim had been established by agreement and acquiescence, and that adverse possession had been maintained for more than fifteen years. The'plaintiff’s witnesses testified that in 1895 or 1896 a fence had been built by one of the plaintiffs’ grantors along the line now claimed as the boundary by the defendant; that one of the defendant’s grantors afterwards paid half its cost; that the builder placed it on the line as near as he knew its location; that it remained in its original position until 1915; and that the true line was located by a survey in 1912. Their testimony did not conclusively prove, even if it had any tendency to show, that there was an agreement that the fence should constitute the boundary between the two tracts, or that either party regarded it as indicating the dividing line unless it actually coincided with that between the southwest quarter and the southeast quarter of the .quarter section. The demurrer to the evidence was therefore properly overruled. The contention is also made that a motion for a peremptory instruction for the-defendant should have'been sustained on the same grounds. Witnesses for the defendant testified to an agreement concerning the boundary, and to facts the existence of which would probably have constituted adverse possession. But the jury were not bound to find in accordance with this testimony. The defendant insists that in virtue of the reference in the will to the forty acres devised to his grantors, he and they from the first claimed to own beyond the east line of the southwest quarter of the southwest quarter, and occupied the land in dispute under that, claim. But the evidence does not conclusively establish this. Of course a possession held up to the fence
8. Complaint is made of the refusal of an instruction to the effect that the defendant was entitled to a verdict if he and his grantors had been in possession of the tract in controversy for fifteen years prior to the beginning of the action, claiming the right to own it. The instruction was defective in failing to enumerate the other elements necessary to make the holding adverse, such as openness, notoriety and hostility. The court refused to give a requested instruction to the effect that one in the possession of real estate and using it as his own and keeping the rents and profits is presumed to claim it as his own unless it is shown that he is holding it as a tenant or under authority of someone else or in some other way than as owner. The instruction was not adapted to aid the jury in the solution of the questions submitted to them.
9. An instruction was given to the effect that if the fence referred to was built by one of the owners of the southeast quarter of the southwest quarter for his own personal use, not intending that it was to be a line fence, the possession of the tract in controversy by the owners of the southwest quarter would not be adverse without their having made known to the owners of the southeast quarter “their intention of holding said land to the boundary of said fence, and that their possession thereto was open, notorious, peaceable and adverse to said owners.” It' is argued that this is in conflict with the rule thus stated in Peterson v. Hollis, 90 Kan. 655, 136 Pac. 258:
“Where a landowner holds up to a fence, with the purpose of claiming it as his boundary irrespective of whether or not it corresponds with the true line, and does nothing inconsistent. with this intention, his occupancy is adverse, even although the adjoining owner supposes he intends to claim only what he originally owned.” (Syl. ¶ 2.)
We do not regard the instruction as furnishing ground for reversal. Its fair interpretation seems to be, not that the defendant in order to avail himself of the statute of limitations was required to show that actual knowledge was brought
“In order to show that the defendant and those from whom he purchased the real estate have claimed to he the owner of the real estate and have claimed a right to it, it is not necessary to show that they in express words said to anyone that they claimed the real estate or that it was their’s, but if they were in possession of the real estate and farmed it and kept and retained the crops and rents from it and treated it as their own without paying rents to anyone else or without recognizing or admitting anyone else had any rights in and to said land, it is sufficient to show an intention on their part to claim the real estate as their own.”
Complaint is made of various instructions regarding the effect of the will. As we have concluded that as a matter of law the will gave the defendant’s grantors title to only the legal subdivision known as the southwest quarter of the southwest quarter it is unnecessary to discuss any rulings relating to that matter.
The judgment is affirmed.