55 Kan. 259 | Kan. | 1895
The opinion of the court was delivered by
After this cause was argued and submitted to this court, John W. McAnulty, defendant below, asked permission to confess the alleged errors. Thereupon The Scottish Mortgage Company filed its application to be substituted as defendant in error, and showed that, under a foreclosure sale of a mortgage executed by McAnulty and wife upon the premises in dispute, the company had become the purchaser and owner of the property during the pend-ency of this proceeding in this court; that through such foreclosure sale the former title and interest of McAnulty in the property had become vested in the company. Under the provisions of the civil code, which are applicable by analogy to petitions in error, the application of The Scottish Mortgage Company is granted, and that company is substituted" as defendant in error, as successor in interest of John Mc-Anulty. (Civil Code, §§36, 40, 41, 42.)
It appears from the findings of the court that the plaintiff obtained 'his patent from the government by fraud and perjury. It also appears from the findings that he will be successful in his attempt to commit a gross fraud upon John McAnulty, or his successor in interest, if this court should reverse the judgment rendered against him. Conceding that the contract
"It is a general rule of law that a man will not be allowed to set up his own illegal acts for the purpose of avoiding his own deed. And with regard to executed illegal contracts, where the parties thereto are in equal wrong, it is a general rule that the law will not aid either of them, but will leave each and all of them where it finds them.” (Mellison v. Allen, 30 Kas. 382 ; Brake v. Ballou, 19 id. 397 ; Tucker v. Allen, 16 id. 312.)
In Weeks v. White, 41 Kas. 569, Frisbie, who continued the agreement of the first homestead settler with Markham & Byers from whom Weeks purchased, died before any patent was issued. His widow took the title of the land in dispute in her own right at the death of her husband, and not as his heir. She made her own application to the land office to prove up under the homestead act; therefore, Mrs. Frisbie, from whom White obtained his title, was not guilty of fraud and perjury in obtaining her title from the government. White's title was not tainted. The other cases cited by the plaintiff against the judgment rendered are not in all respects founded upon the same state of facts as disclosed in this record. The case of Nichols v. Council, 9 S. W. Rep. (Ark.) 305, and the other decisions referred to from Arkansas, ruling that
It is insisted that the trial court erred in receiving evidence tending to prove that McAnulty purchased the land of plaintiff, and that the lease was executed by the parties as a mere subterfuge to evade the statute of the United States. The general rule is that a tenant cannot be permitted to controvert the title of his landlord under whom he enters into possession, but in this case, the lease itself was a fraud upon the government, and was only executed as a pretext to carry out the arrangement under which McAnulty was to obtain possession and title. A lease to real estate and the transfer of possession thereunder is a species of conveyance. (Coughlin v. Coughlin, 26 Kas. 116; Land Co. v. Gas Co., 43 id. 518.) ■
It is next insisted that the trial court committed error in receiving evidence, and that its findings are contrary thereto. The cause was tried by the court without a jury. We have carefully examined the whole record, and find no material error. There was sufficient evidence to sustain the findings.
The judgment will be affirmed.
