44 Kan. 411 | Kan. | 1890
This action was commenced in the district court of Wyandotte county, February 8, 1886, under § 595, civil code, by Mary A. Powell against Nicholas MeAlpine, to recover the possession of one undivided half of ten and a fraction acres of land. Prior to the 15th day of January, 1875, Daniel Powell, the husband of the plaintiff below, owned and occupied with his family the certain ten acres and a fraction, which is the subject of this controversy. Besides himself and wife, the family consisted of their sons Joseph (since dead), Alexander, James and Thomas-Powell. Of these four sons, named in the order of their birth, Thomas, the youngest, was about seventeen years old at the date above mentioned, to wit-, January 15, 1875. According to the theory of the plaintiff below, and the evidence-she offered tended strongly to support it, Mary A. Powell left Wyandotte county on the 15th day of January, 1875,. for Woodson county, to reside on a tract of laud; arrived there in due time, took possession of it, and lived thereon for years. This land in Woodson county was obtained by Daniel Powell by an exchange of the ten and a fraction acres in Wyandotte county, with one A. B. Bartlett for eighty acres-in section 9, township 25, range 15, in Woodson county. Bartlett conveyed the eighty acres and gave some money in addition for the land in controversy. The Powells lived on the land in Woodson county for about twelve years — the-old man dying in 1882 — and finally sold it. A title to-a part of this land was in Mary A. Powell, and she enjoyed the benefits of all the land, knowing that it came to them by the exchange with Bartlett. She avers that she never signed or acknowledged a conveyance of the ten and a fraction acres to Bartlett. It is on this theory that she brought the action, and that it was tried in the court below. It was claimed that the property in Wyandotte county was her homestead, and that she never gave her consent to its alienation, and the trial court held strictly on that question that the joint consent of the husband and wife to an alienation of their homestead con
The whole theory of her case as tried in the court below, and there was evidence to sustain it, was, that at the time this deed purported to be executed by her, she was not in Wyandotte county, but in Woodson county, or on her way there. The trial court instructed the jury, “That the only question to decide in this case is whether said plaintiff, Mary A. Powell, did in fact execute and acknowledge the deed from Daniel Powell and Mary A. Powell, dated January 23, 1875; and if you find that the plaintiff did not execute and acknowledge said deed, you will find for the plaintiff.”
During the trial, the plaintiff in error offered to prove what the plaintiff below said about the exchange of lands with Bartlett, from whom the title and possession of the eighty acres in Woodson county had been obtained; about the Powells delivering up the possession of the land in controversy to Bartlett; about a team being turned over to Powell in part consideration of the exchange; — but all of this was ruled out, and the court excluded from the jury a large amount of testimony tending to show that at and before the exchange of lands with Bartlett, Mary A. Powell knew of the exchange, expressed satisfaction with it, acted in accordance with its terms, and enjoyed for years all the benefits of the Woodson county lands, with a full knowledge of all the terms and conditions of the exchange. All this evidence was excluded by the trial judge, and the defendant below not allowed to present the details of the exchange and Mrs. Powell’s knowledge of them, and her satisfaction with them. We think this case was tried on the wrong theory, and that the exclusion from the jury of all these things was error. " Ac
For this error, and the others generated by it, the judgment of the district court should be reversed, and a new trial granted.
By the Court: It is so ordered.