Maduska v. Thomas
6 Kan. 153
Kan.
1870
Check Treatment

The opinion of the court was delivered by

Valentine, J.:

The defendant in error, who was plaintiff in the court below, brought his action to recover Lots 11 and 12, in Block 24, in Leavenworth city, in this State. The action was tried before a jury. The record shows the following proceedings at the close of the trial:

“ The court instructed the jury to find for the plaintiff. The defendants then requested the court to submit the case to the jury, which the court refused to do, to which ruling and decision of the court the defendants at the time excepted. The court then instructed the jury to find a verdict for the plaintiff, to which instruction the defendants at the time excepted. The court then directed the clerk to write out a verdict for the plaintiff, and hand it to the jury to be signed. The clerk drew up a verdict as follows: ‘ We the jury find for the plaintiff,’ and presented it to the jury. Several of the jurors refused to sign it, when Jacob Ketner signed it as foreman, and returned it to the clerk, when it was read to the jury. The defendants then demanded that the jury be polled, which the court refused to permit, to which ruling and decision of the court the defendants at the time excepted.
“ The jury were then discharged. The defendants moved the court for a new trial for various reasons, which motion the court overruled, and the defendants excepted; and thereupon the court rendered judgment in favor of the plaintiff, and against the defendants for the recovery of the property in controversy, and for costs, to which judgment the defendants at the time excepted.”

*159i Trial by jury— right of. *158This judgment is unquestionably erroneous. In a con*159tested case, the judgment, to be valid, must be founded uPon the findings of a court, the report of a referee, or the verdict of a jury. It'will not beclaimed that this judgment is founded upon the report of a referee. It will hardly be claimed that it is founded upon the findings of the court; for in a case like this, which can be tried by a jury only, unless the jury is waived, the court has no authority to make any findings. And it cannot be claimed that the judgment.is founded upon a verdict of the jury; for the record does not merely fail to show that the supposed verdict was the verdict of the jury, but it clearly shows that it was not such verdict. The most that can be said in favor of the plaintiff, with reference to said verdict, is, that the jury disagreed.

2'poiíed,mifsde~e 3.. Verdict deflnodWith all the instructions of the court, only one juror was found to sign the verdict. Several of the jurors refused to sign it; and others expressed no opinion ; and the court refused' to allow the jury to be polled. Here the court erred. The verdict of a jury is the verdict of each, and every juror. The verdict of eleven jurors, or any less number than twelve, is not the verdict of the jury. A party has, in all cases, a right to know whether a supposed verdict is the verdict of each juror, or of only one or more of the jury; and if sections 283 and 284 of the civil code, (Gen. St. 1868, p. 683,) do not apply where the jury decide, without retiring from the jury box, still the common law would give each party the right to know the verdict of each juror.

4. contract-be avoided. II. It is claimed however, that if the court did err in refusing to submit the case to the jury, in refusing to permit thejury to be polled, and in render-mg a judgment without a proper verdict to *160sustain it, still the error did not affect the substantial rights of the defendants,xand therefore they have no good reason to complain. "We do not think it is very obvious from the record, that the substantial rights of the defendants were not affected. On the contrary, we think the record tends to show that the substantial rights of the defendants were materially affected by the error of the court.

The facts in the case are not found by the jury, but the evidence tends to show the following facts : On the 19th day'of April, 1855, while the government of the United States still held the title to the lots in dispute, in trust for the Delaware Indians, Malcolm Clark, the ancestor of the plaintiff, sold said lots to Jacob Sass, the grantor of the defendants, for four hundred dollars, and received one-half of the same down, and the other half in a promissory note payable when said Sass should receive the title to said lots; and Clark bound himself, his heirs, executors, and administrators, to make to Sass a quit-claim deed for said lots, when said note should be paid. After-wards Clark died, and his administrator bought said lots of the government at the Delaware land sales, paying therefor five dollars each, from the funds of Clark’s estate, and the patent was made to the “ heirs” of said Clark. Afterwards, Sass paid the amount of said note to the administrator of Clark’s estate, which amount undoubtedly became a part of the assets of the estate, and has in all probability been paid over to the plaintiff who is the sole heir of said Clark. Now, if the proof upon all these points was sufficient, the defendants had a good defense to the plaintiff’s action. It cannot be contended for Clark, nor by his heir, that the contract between Clark and Sass is void. (Fackler v. Ford, 24 *161Howard, 822.) After Clark and his heir have received, by virtue of said contract, four hundred dollars, in the aggregate, óf Sass’s money, three hundred and ninety dollars more than the lots cost, no rule of law or equity would permit the heir to repudiate her ancestor’s contract. She cannot enjoy the benefits of such contract, and at the same time repudiate its burdens. She cannot hold the money, and also hold the lots. The law cannot permit such gross injustice. For authorities we refer to counsels’ briefs. •

The judgment of the court below is reversed, and the case remanded for a new trial.

All the Justices concurring.