96 Kan. 456 | Kan. | 1915
The opinion of the court was delivered by
This vras an action of partition in which a controvery arose among the heirs of Charles T. Kruse, deceased, as to the ownership of an eighty-acre tract of the land involved. There was no contention as to the heirs of Charles T. Kruse nor as to the respective shares of each in the land owned by him at the time of his death, but one of the heirs, a daughter, Louisa L. Rose, alleged and offered evidence to prove that although the legal title stood in the name of her father when he died the equitable title and real ownership was in her. It appears that Charles T. Kruse conveyed tracts of land to several of his children and had executed a deed conveying the tract in controversy to Louisa. In 1901 she signed a deed which purported to transfer the title of the land back to her father, but she alleged that she was induced to sign the deed by undue influence and by representations that she would con
It is contended that the findings and judgment are not sustained by the evidence. There was testimony that the land was owned by Louisa when it was conveyed to her father in 1901, that no consideration was paid by him for the conveyance, that he frequently stated to others that the land belonged to Louisa, and that during the time that the legal title was in him permanent improvements of considerable value were made by her.
On the question of undue influence there was testimony to the effect that she was afflicted with a nervous illness and occasionally had spells which weakened her so that she did not understand what she was doing or what was transpiring about her; that some members of the family urged her to deed the land to her father on the ground that part of the time she was not conscious of what she was doing and that some one would get her land away from her; that they pressed her to do so when she was nervous and sick as often as once or twice a day; that a man had called upon her and proposed marriage, one whom her folks did not like, and they insisted that if she got married her husband would get the land away from her. She testified further that she signed the deed to the land with no intention of giving it to her father but because she had been led to think “somebody might get it away from me.” Although there is conflicting testimony there appears to be sufficient to support the findings that she was induced to sign the deed by undue influence which overcame her will, so that the deed did not express her mind and intent, but rather that of others. Her evidence was sufficient to bring the case within the rule of the decided cases, and the instruction of the court upon the subject was in line with the rule heretofore declared
The plaintiffs insist that in no view should Louisa have been awarded more than a life estate in the tract. This contention is based upon a remark made by Louisa in giving her testimony to the effect that if she would deed the land to her father they, the family, would fix it so that it should be hers as long as she lived. Another witness quoted a similar remark. It is clear from all the testim'ony, however, that she was not thinking or speaking of a life estate in the land, but rather that the land was to be hers always notwithstanding that the legal title stood in the name of her father. The entire testimony, accepted by the court, indicates that she was to have the owfiership of the land just as she did before the deed to her father was executed.
Complaint is made of the admission of testimony that in the neighborhood Louisa was generally reputed to be the owner of the land. It is true, as plaintiffs contend, that title itself can not be established by reputation of ownership, but it is also well settled that evidence of notoriety of claim of title in the vicinity of the land may be received to show the character of the possession and to charge residents of the neighborhood and those dealing with the claimant with notice of the claim. Competent evidence of title to the land in Louisa had been produced before testimony of neighborhood notoriety of her claim had been produced, and sufficient proof of title having been made it is not improper, or at least not prejudicial, to show reputation and notoriety of her claim of ownership. (Harvester Co. v. Myers, 86 Kan. 497, 121 Pac. 500, 39 L. R. A., n. s., 528; Maxwell Land Grant Co. v. Dawson, 151 U. S. 586, 14 Sup. Ct. Rep. 458, 38 L. Ed. 279; Tennessee Coal, Iron & Railroad Co. v. Linn, 123 Ala. 112, 26 South. 245, 82 Am. St. Rep. 108; Knight v. Knight, 178 Ill. 553, 53 N. E. 306; Sparrow v. Hovey, 44 Mich. 63, 6 N. W. 93; 1 Cyc. 1151; 2 C. J. 275.) Her father and the other members of the family had knowledge of her possession of the land and of the permanent character and value of the improvements made by her upon it, and from the notoriety of her claim of ownership in the neighborhood it may well be assumed that it came to the notice of the father as well as the appellants herein.
The judgment of the district court is affirmed.
