31 Kan. 423 | Kan. | 1884
The opinion of the court was delivered by
On February 12,1878, and prior thereto, W. L. Taylor, who then resided in the town of Cherokee, in Crawford county, Kansas, was the equitable owner of forty acres of land near that town, and was the absolute owner of one-half of a town lot, with a little house thereon, situated in the town. The legal title to the land was in the Missouri River, Fort Scott & Gulf railroad company, but Taylor had a contract for the purchase thereof. The legal title to the half-lot was in Taylor. Taylor at that time was in feeble health, and, expecting soon to die, assigned the said contract for the purchase of said forty acres of land to his daughter Lydia, and conveyed by deed the said half-lot in Cherokee to his daughter Josephine. The two daughters did not reside in Kansas, and in fact have never resided in Kansas, and have never even been in Kansas. Hence when Taylor executed said assignment and said deed, he handed the same to E. A. Perry, who was then present, with the request that Perry should deliver the same to his daughters, which Perry agreed to do and afterward did. Taylor also asked Perry to look after all his property, and see that his daughters got the same after his death. On March 14, 1878, Taylor died intestate, and Perry was appointed his administrator. Afterward Perry entered into correspondence with the daughters —Lydia then residing at Chicago, Illinois, and Josephine at
We shall now proceed to consider the case of E. A. Perry, plaintiff in error, v. Lydia Smith, defendant in error.
The case, as it was originally brought by Mrs. Smith, was an action for money had and received; and while the defendant, Perry, claimed that he fully accounted for and paid over to Mrs. Smith all the money which he ever received belonging to her, yet we think his principal defense, and the one which he principally relied on, was and is the statute of limitations ; and in order that the grounds for this defense may be fully understood, we shall state some additional facts: The defendant Perry effected the sale of the said forty acres of land on March 5,1879. He claims that he sold the same for $50, and for only $50. There was some evidence introduced, however, showing that the defendant admitted that he had sold the property for $100; and there was also some evidence introduced tending to show that he received two lots in the town of Cherokee, in part payment on such sale. These lots were conveyed to the defendant on October Vo, 1879. There was also some evidence introduced tending to show that these lots were taken by the defendant at the price of $32; and there was still other evidence introduced, tending
Under these facts we do not think that any statute of limitations has barred the plaintiff’s action. It was not-three years from the time when the defendant received the conveyance for said two lots to himself until the plaintiff commenced this action. It was not three years from the time when he received the plaintiff’s money on said land until she commenced this action; and it was not even' one
We hardly think it is necessary to discuss any of the other questions suggested by counsel in this case. Many of the alleged errors were really not errors; some of them which were possibly errors were not material, and others were not properly saved.
Taking the whole case together, we think no material error was committed, and substantial justice was done.
The judgment as finally rendered by the court below was in favor of the plaintiff and against the defendant, for the recovery of $50 and costs, and this judgment will be affirmed.