Robertson v. Bell

36 Kan. 748 | Kan. | 1887

The opinion of the court was delivered by

Valentine, J.:

We think the court below erred in sustaining the defendant’s demurrer to the plaintiffs’ petition. It does not appear upon the face of the petition, or elsewhere, that there was another action pending between the same parties for the same cause; nor does it appear that there was any defect of parties plaintiff; nor that the petition did not state facts sufficient to constitute a cause of action. The action is virtually a suit in equity to set aside an award of fence-viewers for a want of power in them, for irregularity in their proceedings, and for fraud on the part of the defendant. It appears from the petition, among other things, that the line of partition fence to be maintained by the parties was 160 rods in length, north and south; that the plaintiffs owned the land on the east side of this line, and the defendant owned the land on the west side thereof; that, by previous arrangements between the parties, the plaintiffs were to maintain the north 80 rods of the fence, and the defendant the south 80 rods thereof; that the plaintiffs had already expended a considerable amount of time, labor and money in keeping up and maintaining their portion of ,the fence; that while this arrangement between the parties was still existing and in force, the defendant procured the fence-viewers to make an award requiring the plaintiff John H. Eobertson to also keep.up and maintain the south 40 rods of the south 80 rods of fence, which 80 rods the defendant was by the previous arrangement to keep up and maintain, leaving the defendant to keep up and maintain only the north 40 rods of the south 80 rods of said fence. Now after the foregoing arrangement between the parties had been made, we think this attempt on the part of the defendant to require the plaintiff John H. Eobertson to keep up and maintain an additional portion of the fence, making in the aggregate 120 rods out of the 160 rods of fence, by procuring the aforesaid award of the fence-viewers, was fraudulent and wrong, and the award of the fence-viewers for this reason should be set aside. Of course we know nothing of the real facts of the case, except as they are stated in the plaintiffs’ petition; and as they are there stated, we think the plaintiffs are entitled to the relief which they now pray for; or at least the plaintiff, John H. Robertson, is entitled to such relief ; and Mrs. Robertson is a proper party to the action. The statute of frauds has no application to this case. This statute was not enacted to encourage fraud, or to enable parties to commit fraud, but was enacted to prevent fraud. Unless the plaintiffs can have the remedy which they now seek, they have no remedy; and to say that they have no remedy, is to cast reproach upon the administration of justice. They have no appeal and no petition in error, and no remedy more direct than the one which they have resorted to in this case. Indeed, they have no complete remedy unless they are permitted to maintain an action such as the present action is. Hence, we think they should be permitted to maintain this action.

The order and judgment of the court below will be reversed, and the cause remanded for further proceedings.

' All the Justices concurring.