Porter v. Hall

11 Kan. 514 | Kan. | 1873

The opinion of the court was delivered by

Brewer, J.:

This was an action brought by plaintiff in error to compel the specific performance of a contract for the conveyance of certain real estate. The contract was made as alleged in 1858. It was never recorded. The instrument itself was not in evidence, but parol testimony was received tending to show the making of such a contract, its deposit for safekeeping with one John W. Henry, its loss and its contents and performance by plaintiff. This testimony was sufficient to make a prima facie case for the plaintiff. But the record fails to show that all the evidence on the trial was preserved. No findings of fact, or conclusions of law, were made, but only a general finding for defendants, and there was no motion for a new trial. Under these circumstances, well settled by prior adjudications, it is impossible for this court to affirm error. A general finding for defendants finds all the issues in their favor and against the plaintiff. How can we decide that the court erred in such finding, without examining all the testimony upon which it was based ? The plaintiff’s claim of title rested upon several facts. It was not conceded by the pleadings. It was not based upon a single instrument, like a patent, making of itself proof. The fact of a contract between the parties named in the petition, the terms as therein set forth, and the performance by- plaintiff of his portion of the agreement, must all appear before any right of recovery is shown. Until we can see from the entire testimony that all these facts were as claimed by plaintiff it would be useless to inquire as to the defendants’ title, or whether the court erred in the admission of their deeds.. For the plaintiff must recover on the strength of his own and not on the weakness of defendants’ title. Upon the rule which decides this case see the following decisions: Major v. Major, 2 Kas., 336; Lacy v. Dunn, 5 Kas., 567; City of Topeka v. Tuttle, 5 Kas., 323; Shelton v. Dunn, 6 Kas., 128; Hefferlin v. Stuckslager, 6 Kas., 166; Hall v. Jenness & Cohen, 6 Kas., 356; Hoffman v. Meyer & George, 6 Kas., 398; Hale v. Bridge Co., 8 Kas., 466; Bancroft v. Chambers, 10 Kas., 364. The judgment of the district court will be affirmed.

All the Justices concurring.