18 Kan. 157 | Kan. | 1877
The opinion of the court was delivered by
The patents for the Iowa trust lands were kept in the office of Likins & Boyd, and the defendant Clark produced
At the death of John H. Likins, on March 13th 1860, his only surviving child, Myra H. Likins, became his sole heir-at-law. She was born in February, 1849. Myra’s mother died in 1860, prior to the death of her father. On July 21st 1870, Myra H. Likins was married to James C. Mobley, at Hagerstown, Md., where she has resided since 1860. On February 6th 1872, Myra H. Mobley and husband executed to John P. Johnson, the plaintiff, a quitclaim deed for the
The same day on which the plaintiff recorded his deed in Brown county, February 24th 1872, he commenced his action in the district court of that county against the defendant E. H. Clark for the recovery of the real property in dispute in this cause. The case was referred to David Martin, Esq., to report the facts, and thereon the court gave judgment for the defendant. Proper exceptions were taken, and the cause is in this court for review at the instance of the plaintiff.
The plaintiff seems to have been unfortunate in the means adopted by him to understand the condition of the property before buying. He took the trouble of writing to Washington to learn about the patent, when he could have seen it by calling upon Clark, who produced it on the trial. He obtained abstracts of title, but notwithstanding the conveyances of undivided parts to Vimont, the grantor of Clark, he made no inquiry of either Clark or Boyd, and finally paid the purchase-money without viewing the land, and without knowing what improvements were on them. An interview with Clark, on the premises, would have enabled the plaintiff to have been fully acquainted with Clark’s claim, and his rights to the premises, as also the valuable improvements on the place. There is nothing in the record by which Clark is estopped from relying upon his possession, as notice of so much of his title as was derived through the deed of John W. Boyd.
As stated above, an -investigation of the proceedings of the probate court shows, that the deed of the administrator of such estate, of April 1st 1860, conveyed title of an undivided-half of the premises sued for to John H. Vimont, as trustee, etc. The proceedings in said court were sufficiently regular to transfer the interest sold. The appraisement was for an undivided-half of the premises; the certificate of the appraisement was referred to in the administrator’s report of the sale, was returned with the report of sale to the court, and was copied in full in the deed. On the day after the administrator’s deed was executed, the deed of John W. Boyd to the grantee of the administrator’s deed, was also delivered, and this conveyed to such grantee another undivided-half of the premises. The administrator’s deed conveyed all the' right, title and interest of John H. Likins, deceased, to Vimont, as rustee. At the time, this interest was assumed to be one undivided-half. The appraisers acted upon this understanding,
The judgment must be affirmed.