Knickerbocker v. Bangs

93 Kan. 733 | Kan. | 1915

The opinion of the court was delivered by

West, J.:

The plaintiffs sued to quiet title to a ten-acre tract of land. From an adverse judgment they appeal, and the questions involved concern the effect of an administrators’ sale and the matter of adverse possession. The trial court made findings of fact which appear to be satisfactory to both parties, the controversy being over the conclusions of law. From these findings it appears that the land was embraced in a larger body, which passed by the will of Soranus L. Brettun in 1881; that under this will the widow, Margaret, took a life estate. Charles L. Black, a grandson, took one-third in fee, and two other grandchildren, Caroline Louise Crapster, now Bangs, and Brettun Crapster, each took a life estate in one-third, and after the death of Caroline' Louise her children were to have her one-third in fee. Caroline Louise married defendant A. C. Bangs, and Brettun C. died before this action was begun, leaving a widow, Jennie G. Crapster, and two children, Bretta V. and Caroline L. In October, 1883, the executors of the will secured an order to sell the real estate for the payment of the real estate now in controversy for the payment of debts of'the testator, and it was ordered that notice be given to Caroline L. and Brettun, who were designated as the sole heirs at law of Soranus L. Brettun. Margaret Brettun and Charles C. Black were the executors, and of course had notice of their own proceeding. Notice was served as directed and an order was made directing a sale of the real estate, including that now in controversy, and a deed was ordered executed and recorded. When notice was served, however, Caroline L. Bangs had an infant son, Milton A. Bangs, then between two and three months old, on whom no service was made. Afterwards in certain other litigation all the interest of Charles C. Black was extinguished. In August, 1886, a sister of Milton A. Bangs, Margaret E., was born. In November, 1890, Ruth T. was born, and in February, 1892, Phyllis G. Bangs was born. Milton A. Bangs’ majority was reached in 1904, and those of his three sisters, respectively, in 1904, 1908 and 1910. Certain other defendants filed disclaimers and need not be further mentioned. In June, 1885, the grantee of the administrators executed a warranty deed to George E. Knickerbocker purporting to convey a full and complete title to the north five acres of the tract in question, and in June, 1887, he executed a warranty deed to the same grantee purporting to convey a complete title to the south five acres. Immediately after the purchase of these tracts George E. Knickerbocker fenced the land, planted an orchard and put on improvements costing about $500, which was the purchase price of the land, and until his death held open, notorious and exclusive possession, claiming to own the tract as against the defendants and the world. He was absent from Kansas from April 1, 1889, until his death, March 25, 1891. In April, 1891, the plaintiffs, being the widow and daughters of George E. Knickerbocker, returned to Kansas, and in a year or two buildings and improvements were placed upon the land to the value of $800, the plaintiffs occupying the tract as their homestead from 1892 or 1893, and from their return, in April, 1891, up to the commencement of this action, August 7, 1912, they held open, notorious, tangible, exclusive and adverse possession.

It is claimed by the plaintiffs that as no proceeding was begun within five years to attack the administrators’ deed, and none of any kind by either of the heirs within two years after reaching majority, they are barred from any defense to this action, the defend.ants contending that the deed was void and that the title still remains in the heirs of Caroline Louise Bangs.

The deed as to Milton A. Bangs was void for want of notice to him, and the form of the order of sale and also of the deed, by which each purported to cover the entire title to the land, could have no effect to divest such estate therein as belonged to a minor on whom service was omitted, but the court found that for much more than fifteen years beyond the two years succeeding the majority of each of the heirs the appellants were in open, notorious, exclusive and adverse possession as against the world. Whatever rights each of these minors had, when coming of age, to set aside the administrators’ deed or to have his interest in the land adjudicated, the statute made it imperative that such rights should be asserted within the time fixed, in order to prevent the ripening of full and complete title by adverse possession. It is only necessary to decide, as we must and do decide, that the defendants have slept upon their rights and their defense is barred. (Young v. Walker, 26 Kan. 242, 248-251; Thompson v. Burge, 60 Kan. 549, 57 Pac. 110; O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555; Crapster v. Taylor, 74 Kan. 771, 87 Pac. 1139; James v. Logan, 82 Kan. 285, 290, 291, 108 Pac. 81; Freeman v. Funk, 85 Kan. 473, 117 Pac. 1024.)

It is suggested that the plaintiffs hold under the life tenants and can not be heard to question the validity of the administrators’ sale, and that a life tenant can not quiet title as against a remainderman. Probably the adverse possession found by the court would be fully sufficient for the purposes of the plaintiffs regardless of the administrators’ proceedings or deed, and certainly there is nothing in the findings to indicate in the slightest degree that the plaintiffs have ever held in subserviency to the interest of the remainder-man. (See Nelson v. Oberg, 88 Kan. 14,127 Pac. 767.)

• It follows, therefore, that the judgment must be reversed, and the case is remanded with directions to enter j udgment in accordance herewith.