46 Kan. 183 | Kan. | 1891
Opinion by
September 20,1877, Hugo Felitz was the owner of lot 5, section 30, township 11, range 16, Shawnee county, Kansas. October 5, 1881, he and his wife, Catherine Felitz, deeded an undivided one-half interest in Said property to the Topeka Water Supply Company. January 26,1882, said Hugo Felitz and wife deeded the remaining undivided one-half interest in said lot to the Topeka Water Supply Company. February 22, 1886, Hugo Felitz and wife entered into an agreement with H. C. Root and J. W. Campbell, whereby they agreed that if said Root and Campbell would commence a suit to set aside the deeds made by Felitz and wife to the defendant, and prosecute said suit to a successful conclusion, as consideration for their services
There are other questions in this case, but we do not care to discuss them. In sending this case back for a new trial, we prefer to let it go back affected by' as few restrictions as possible, leaving the case open for a full and complete trial of all the questions raised in the case, and only suggest that it be tried by counsel with more care than before, and that, in so important a case as .the record here presents, with so many important questions involved, there should be findings of fact upon all the important questions raised by the pleadings.
Counsel for defendant argue in their brief that there is no evidence that the land in question was the homestead of Hugo and Catherine Felitz when they executed the deeds to the defendant company. We think they have overlooked the evidence in the case on that question. It is true there is not a great amount of evidence upon the question, but there is direct and positive evidence supporting the homestead allegation, and it is hardly rebutted by the uncertain aud incomplete evidence that the premises are within the city limits, and contain more than is allowed by our homestead provision in a city. All the deeds describe the premises as lot 5, section 30, township
Counsel for defendant, in their brief, say there is no evidence of the insanity of Catherine Felitz. There is none except that which comes through the said record of the superior court; but possibly that is enough. It depends upon the effect given to the judgment of dismissal in the superior court, upon which hangs this entire case as the record is now made up. The defendant company did not offer the deed obtained by it from Hugo'and Catherine Felitz, August 26,1886, in evidence, and says in its brief that it did not in any way rely upon the title thus obtained. But that deed is in evidence in the case, and the evidence, as it now stands, shows that the defendant not only procured said deed for some purpose, but that it gave a valuable consideration therefor; and there is no explanation by the defendant as to the purpose in obtaining said deed, the real consideration therefor, nor as to whether said deed had any relation to the dismissal of the suit in the superior court by Mrs. Felitz.
We recommend that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.