Jones v. Hollister

51 Kan. 310 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J.:

The contract under which Hollister claims the land in controversy was made by the Leavenworth, Pawnee & Western Railroad Company to E. H. Van Deusen and B. F. Hopper on February 23, 1863. At the date of the contract, $245.33 was paid in cash, and four notes, each for $122.62, due in one, two, three and four years, respectively, were given for the balance of the purchase price. The contract contained no terms of forfeiture, and, excepting the reservation for the railroad company of a right-of-way 80 feet in width over the land, and the right to take gravel, earth and stone for the construction of its road, the provisions were merely to the effect that the company would execute to Van Deusen and Hopper, their heirs and assigns, a general warranty deed for the land sold, upon the payment of the notes and interest specified therein. Van Deusen and Hopper immediately went into possession of the land. Van Deusen afterward assigned his interest in the contract to Hopper, and in 1870 Hopper quitclaimed his interest to Samuel K. Huson. In this conveyance Huson assumed the payment of the notes to the railroad company, none of which have been paid. Huson immediately took possession of the land by tenant, and continued in possession of the land utftil his death. He died January 2, 1875, leaving a widow and heirs, who continued, so far as they were able to do, to collect rent from the tenants occupying the land. Huson never paid the notes in question, or any part of them, and they still remained unpaid. In 1879 the heirs of Huson, deceased, ceased paying taxes upon the land. They did not pay the taxes for that year or any subsequent year. The land was afterward sold for taxes, and deeded to J. P. Usher. Usher took possession in the spring of 1884, and continued in possession until his death. Since his death, Margaret A. Usher, his widow, has continued in possession of the land, and is now in possession of it, through Valentine Jones, her tenant. Usher placed lasting and' valuable improvements upon the land, after he took possession of it. On March 10, 1887, the heirs of Huson quitclaimed their interest in the land to Simpson Hollister. The trial court held that Usher’s tax deeds were void, and gave judgment in favor of Hollister, the plaintiff below, but preserved for the defendants all their rights for taxes and improvements under the statutes.

There is nothing in the evidence or findings showing or tending to show that the Leavenworth, Pawnee & Western Railroad Company or any of its successors ever forfeited, by judgment or otherwise, the contract for the sale of the land of the 23d of February, 1863. Under that contract, Van Deusen and Hopper and their subsequent grantees or assigns had an equitable title to the land. Under the contract, possession was taken by the purchasers, and such purchasers and their grantees or assigns continued in possession from 1859 until the spring of 1884, when Usher took possession under his tax deeds. There is a special finding of the trial court that the widow and heirs of Samuel K. Huson, who was in possession at his death, on January 2, 1875, never surrendered possession of the land, although Devereux, who represented the interest of the Union Pacific Railway Company, Eastern Division, received certain rents from the tenant of the Huson estate.

The contention is that the finding of the trial court, that Mrs. Huson never surrendered possession, is not sustained by the evidence. Wm. P. White was the last tenant from whom Mrs. Huson collected rent. He moved upon the land in 1874 as a tenant of Huson, and left the land in 1881. After Huson died, he paid the rent to Mrs. Huson for two years, and then paid rent to Devereux. But it does not appear that Mrs. Huson consented that White should pay any rent to Devereux, or anyone else. The record shows that the administratrix of the Huson estate brought suit in 1879 against White and recovered judgment of $175 for rent of the land. We think that there was enough evidence offered upon the trial to support all the findings of fact.

It is next contended that Hollister ought not to recover, unless he has a title to the land against the Leavenworth, Pawnee & Western Railroad Company, or the Union Pacific Railway Company, its successor, which would be recognized and protected in a court of equity. But the Leavenworth, Pawnee & Western Railroad Company, the original owner of the land, or its successor, is not here complaining. Mrs. Usher is not the representative in any way in this action of the Leavenworth, Pawnee & Western Railroad Company or the Union Pacific Railway Company, or any other person or party claiming title or interest from any railroad company. So far as' this case is concerned, Usher, when living, and his widow, since his death, are strangers to all the railroad companies. At the trial, T. A. Hurd appeared and asked permission to intervene and file an answer as trustee of the Union Pacific Railway Company, but he is not a party to the proceedings in error, and he makes no complaint in this court of any ruling of the trial court. Therefore, in this action, we cannot, if we would, protect the rights, if any, of the Leavenworth, Pawnee & Western Railroad Company, or the Kansas Pacific Railway Company, its successor, or the rights, if any; of T. A. Hurd, the trustee.

If the railroad companies have permitted the persons holding under the written contract in the purchase of this land to remain in possession thereof without attempting to collect the balance of the purchase money until it has been barred by the statute of limitations, that is a matter wholly between the companies and the parties holding under the written contract of purchase. This is no concern of Mrs. Usher, or her tenant.

Of course, a plaintiff in ejectment'must recover on the strength of his own title, and not on the weakness of that of the defendant. (Mitchell v. Lines, 36 Kas. 378.) But when the Leavenworth, Pawnee & Western Railroad Company sold the land in dispute to Van Deusen and Hopper, and executed to them, as purchasers, a title bond or contract therefor, and received a part of the purchase money, taking several promissory notes for the deferred installments of the purchase money, and then put the purchasers in possession, (time not being of the essence of the bond or contract,) the entire equitable estate of the land passed to Van Deusen and Hopper, and their vendees or assignees. Everything passed to them except the mere legal title, and that was held by the railroad company merely as a security for the payment of the notes. (Courtney v. Woodworth, 9 Kas. 443.) Under the code, an equitable title to real estate is sufficient to sustain an action to recover possession. (Railway Co. v. McBratney, 12 Kas. 9.) Iu this state, in ejectment, the party having the better title may always recover, whatever that title may be, legal or equitable. If the title of a plaintiff is better than that of a defendant, the plaintiff may recover, however weak his title may be. (O’Brien v. Wetherell, 14 Kas. 616; Duffey v. Rafferty, 15 id. 9; Mooney v. Olsen, 21 id. 691.)

Upon the findings of fact, the plaintiff below was entitled to recover. We perceive no error in the record.

The judgment of the district court must be affirmed.

All the Justices concurring.