15 Kan. 423 | Kan. | 1875
The opinion of the court was delivered by
On June 29th 1870, Jacob Weisbach was the owner of a certain piece of land in Marshall county. On that day he sold it to Daniel W. Hamaker, for $3,000, receiving one-half in cash down, and the other half in two promissory notes, each for $750, and payable, one in one year, and the other in two yeai-s. Weisbach gave a bond for title to Hamaker. On January 16th 1871, Hamaker died, leaving a widow and four children as heirs to said land. On April 3d 1871, W. H. H. Freeman was duly appointed administrator of Hamaker’s estate. . During the months of August and September 1871, the St. Jos. & Denver City Rid. Company located their road through said land, and commissioners duly appointed for the purpose assessed the damage at $219.80, which amount was duly paid to Charles F. Koester, county treasurer of Marshall county, for the owner of the land. Weisbach assigned said notes to the plaintiff, Julius Kuhn, and also, on June 25'th 1873, executed deeds for the land to the widow and children of said Ha-maker, according to their respective rights under the laws of descents, and placed them in the hands of Kuhn, to be by him delivered to the proper parties when the notes should be
We think the court below erred. If the plaintiff had any cause of action of any kind, against any one or more of the defendants, even a cause of action on the notes for the amount due thereon, or for any portion thereof, then the court below erred in sustaining the demurrer. And we think the plaintiff had a cause of action. That an action could have been maintained by the plaintiff, on the notes, and to subject the land to the payment of the notes, against Hamaker, if he had lived, and if the railroad company had not obtained said, right of way, there can now be no question. (Courtney v. Woodworth, 9 Kas. 443; Stevens v. Chadwick, 10 Kas. 406; Curtis v. Buckley, 14 Kas. 449.) And we can see no sufficient reason why the plaintiff may not maintain the action against the successors of Hamaker, his administrator and heirs, notwithstanding said right of way. It is certainly true, that his administrator, widow, and children have succeeded 'to all his rights and liabilities, real and personal, which may pass to an administrator and heirs; and it is equally true, that the
The judgment of the court below will be reversed, and cause remanded with the instructions to the court below to overrule both of the demurrers filed .in this case, and for such other and further proceedings as may be proper.