35 Kan. 77 | Kan. | 1886
The opinion of the court was delivered by
This was an action in the nature of ejectment, broughtjby Mary A. Newkirk against John W. Marshall, jand Mary E. Marshall, in the district court of Chase county, for the recovery of certain land situated in that county. The case,j was tried before the court and a jury, and the jury rendered a general verdict in favor of the defendants and againstjthe plaintiff, and also made special findings of fact; and upon this general verdict and these special findings, the court below rendered judgment in favor of the defendants and against]¡the plaintiff. The plaintiff brings the case to this court for review.
Under the foregoing facts, has Mrs. Newkirk a right to recover the land in controversy? The court below held that she has not, but Mrs. Newkirk claims that she has such right, and claims that the court below erred, and founds this claim principally upon the ground that no consideration for the land ever passed from Mrs. Marshall to herself. Was such a consideration necessary, under the circumstances? It must be remembered that Mrs. Newkirk herself never paid any consideration for the land. She procured the title thereto merely by virtue of being the widow of Augustus M. Landsbury, who settled upon it and occupied it with his family under the homestead laws of the United States, and his right did not depend upon her any more than it depended upon his daughter
“. . . The statute of frauds is satisfied by possession as a part performance, and the general doctrines of equity demand, in addition thereto, a valuable consideration. This latter de
Mr. Pomeroy cites a large number of authorities supporting the proposition which he enunciates. (See also Galbraith v. Galbraith, 5 Kas. 402; Twiss v. George, 33 Mich. 253.)
. xL , -a the land from the United States. And as soon as a person is entitled to a patent, although it may not yet have been issued, and may not be issued for years, he or she ma7 contract and be contracted with concerning ]anc^ or ggJJ p. Qr convey the same precisely the same as though the patent had already been issued. Equity, in order to do justice and to protect the rights of parties and to prevent frauds, will generally consider .that as having been done which ought to be done. And in order to protect the rights of all parties, where a patent is due but has not yet been issued, equity will consider such rights precisely the same as though the patent had in fact been issued on the very first day on which it ought to have been issued.