112 Kan. 155 | Kan. | 1922
The opinion of the court was delivered by
This was an action to determine the interest of plaintiffs in 240 acres of land in Trego county acquired under an oral agreement, for specific performance of the' agreement, and to quiet their interest and estate as against any claims or interests of the defendants. In a trial in which a number of special questions were submitted to the jury the court, on the findings made, rendered judgment in favor of the plaintiffs. Defendants appeal.
In a former review of the case matters of pleading were considered and determined. (Kuhn v. Kuhn, 107 Kan. 391, 191 Pac. 487.) It appears that John Kuhn, sr., owned 480 acres of land, of which two quarters were in Ellis county and one in Trego county. Prior to his death, which occurred on March 8, 1912, he executed a will giving to his wife, Barbara Kuhn, 240 acres of his land, and the remainder was devised to his sons, John, Frank and Joseph, each to get 80 acres. The wife was to take her share from the whole as she might elect, and the division of the three 80’s was to be made among her sons as she might deem best. The personal property was given to the wife,
Upon the evidence, findings were made by the jury to the effect that an agreement had been made substantially as related, by which John J. was to have the Trego county land, and upon her death was to be vested with a complete title to it; that Joe and Frank joined their mother in the agreement; that in pursuance of the agreement John J. entered into the possession of the land and thereafter made permanent and valuable improvements thereon; that such possession continued until his death and his widow and son have continued in possession of it until the commencement of this action; that a part of the specified rental had been paid and that the plaintiff was ready and willing to pay any amount that may be due. The court appears to have adopted most of the findings of the jury, or at least included them in the more ample findings made for itself, and then adjudged that plaintiffs were entitled to the relief sought, including the use and occupancy of .the land subject to the right of Barbara Kuhn to receive during her life one-fourth of the crops grown on a certain 80 acres of it; that upon the death of Barbara Kuhn they were to be the owners in fee simple of the land, free from any right, title or interest of the defendants in it; and also that any and all deeds of Barbara Kuhn attempting to convey the portion of the lands to Joe or Frank Kuhn be canceled and set aside. There was a further provision in the decree that certain sums due from plain1 tiffs to Barbara for rental of the land should be paid by plaintiffs, and she was awarded a lien on the land as a security for the payment of such rentals. It is recited in the judgment that the amount due
Defendants question the action of the court in overruling a demurrer to plaintiffs’ amended petition. The allegations of the pleading set forth the claims of plaintiffs under the agreement substantially as they were stated in the original petition, the sufficiency of which was upheld on the former appeal, and are undoubtedly sufficient to warrant the findings and judgment of the court.
Error is assigned on the admission of a selection made by Barbara Kuhn of her portion of the devised land. It had been made a part of the record of the probate court and was properly authenticated. In view of the fact that plaintiffs’ claim was based on an agreed division and upon a plan different from that made in the will, the matter of selection was not important. However, it was a part of the history of the estate and of the action of Barbara Kuhn with respect to it, and its admission cannot be regarded as prejudicial error.
The principal complaint upon this appeal is that the special findings to the effect that an agreement was made under which the son, Johif J., was given the equitable ownership of the land in controversy and had taken possession of it and made permanent improvements upon it, are not supported by the evidence. An examination of the record shows that while there is much conflicting testimony, that given in behalf of the plaintiffs abundantly sustains the findings essential to the support of the judgment. There is not only the direct evidence of Maggie Kuhn that the agreement was made, and some admissions of Barbara Kuhn, but it was also confirmed by the testimony of other witnesses to whom Barbara admitted that the division of the land had been made as claimed by plaintiffs. This evidence was reenforced by a number of circumstances, including the conduct of the parties. Among these is the circumstance that in 1915 and about the time that the agreement was made, John J. Kuhn gave up his position and home in another county and went into the possession of the Trego county land. He began improving and farming it as his own and had paid a rental on a part of it to his mother, and during this time no question as to his ownership was raised until after his death in October, 1918. It further appears that Joe Kuhn took possession of the Knoll quarter in 1915 about the time the agreement was made, paying rent to his mother on 80 acres of his share. Frank also remained on the home place which under the
The complaint is made of certain instructions given to'the jury. It is to be remembered that this was an equitable case and the jury was called to act only in an advisory capacity. Special findings of the jury were returned, as we have seen, but the court, as was its right, made independent findings which conformed to some made by the jury, practically covering the entire case, and its findings so made warrant the assumption that the proof was clear and satisfactory to it. The instructions to the jury are therefore not so important as in cases triable by a jury as a matter of right. The court having given independent consideration to the evidence and made complete findings of fact, errors, if any were made, would not require a reversal. However, we discover no material error in the rules laid down by the court in its charge. Other objections are suggested, but we find nothing substantial in them.
An examination of the evidence upon which the findings were based leads us to conclude that a just judgment was rendered and that none of the errors assigned warrant a reversal.
Judgment affirmed.