29 Kan. 331 | Kan. | 1883
The opinion of the court was delivered by
The plaintiff alleged in her petition that she was at the commencement of this action the owner in fee of the undivided one-half of certain real estate situate in Johnson county, and demanded partition thereof. The case was submitted to the court upon an agreed statement of facts, and thereon the court found as its conclusions of fact substantially as follows: That Cornelius Deweese and the plaintiff, Margaret Martz, were married on November 5, 1868, and cohabited together from that time until about the 15th day of August, 1870, as husband and wife; that during said period they occupied as a homestead the premises described in the petition; that the legal title thereto during such occupancy was in the name of the said Cornelius Deweese; that prior to August 15, 1870, plaintiff was compelled to leave and abandon the premises on account of the cruel treatment of her husband; that she has not occupied the premises since her abandoment thereof; that on August 15, 1870, she instituted proceedings in the district court of Johnson county against said Deweese to recover a divorce and alimony pendente lite, and also permanent alimony; that she prayed in her petition that the alimony, whatever it might be, should be declared a lien upon the land and tenements described in the petition; that at the November term, 1870, of said court, she was decreed an absolute divorce from said Deweese on account of his,fault and aggression, and judgment was rendered in her favor against Deweese for $100 as alimony pendente lite, and $300 as permanent alimony, all of which, together with the costs of said proceedings, were declared a lien on said lands and tenements; that thereafter she caused
Upon these facts, the court found as a conclusion of law that the plaintiff was not entitled to any relief, and rendered judgment against her in favor of the defendant for all costs. Plaintiff excepted, and brings the case here.
Plaintiff claims that she is entitled to recover under the provisions of § 646 of the code, which provides, among other things, that—
“When a divorce shall be granted by reáson of the fault or aggression of the husband, the wife' shall be restored to all her lands, tenements and hereditaments not previously disposed of, and restored to -her maiden name, if she so desires, and shall be allowed such alimony out of her husband's real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of said divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable; and if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed her as alimony, of which he was seized at the time during the coverture, to which she had not relinquished her right of dower.”
Further, it is urged that the plea of the statute of limitations is bad in this case for the reason that plaintiff’s right of action did not accrue until the decease of her former husband, Cornelius Deweese, which occurred in October, 1880. Even if this were so, it is immaterial, as the tax deed is good upon its face, and it has not been successfully assailed by evidence aliunde; therefore it conveyed the superior title held by Sheppard to Newton, and the plaintiff is not entitled as against Newton to claim any interest or estate in the premises.
Several of the findings of the court are objected to upon the ground that they are incompetent, irrelevant, and immaterial. But we cannot discuss these objections, because the findings are based upon an agreed statement of facts, signed by the parties to the action. In the final 'clause of the agreed statement of facts is the following: “ Both parties hereto reserve all right to present such objections as she, he or they may deem proper to any portion of the foregoing facts, on
It does not appear, however, that upon the trial any objections or exceptions were made by either party to the consideration of the facts set forth in the agreed statement, and the attention of the trial court was not called to the objections to the agreed statement of facts now presented.
The judgment of the district court will be affirmed.