38 Kan. 319 | Kan. | 1888
The opinion of the court was delivered by
This was an action brought by Ephraim H. Sanford against Henry M. and Joel P. Weeks, to quiet title to a quarter-section of land in Wabaunsee county. Sanford claimed an equitable title to the land, and actual possession thereof, under a written contract from Miss S. E. Bartholomew, dated December 8, 1879, which was filed for record February 11, 1880; but this contract was not acknowledged. On September 27, 1880, Miss S. E. Bartholomew conveyed the land by warranty deed to the Weekses, which deed, duly acknowledged, was filed for record October 1,1880. Within a day or two after receiving this deed, the Weekses took actual possession of the land; proceeded to build a'dwelling house and make other improvements; soon after, they moved into the house with their families, and have had actual possession ever since.
It appears from the evidence and findings of the trial court that Sanford never paid or offered to pay for the land according to the terms of his written contract. The court held, as a matter of law, that by his failure to comply with the terms of the contract, his rights in the land became forfeited, and that he had no equities or other interests therein at the commencement of this action. In the contract, time is not stated as of the essence, and courts are reluctant to enforce forfeitures. It is not to be presumed that the parties to the contract intended that time should be of the essence thereof, in the
If the decision of the trial court rested upon its construction of the written contract of December 8, 1879, the judgment would necessarily have to be reversed; but this is not the pivotal point in the case. The trial court specially found upon the evidence that the Weekses had no notice, actual or constructive, on September 27, 1880, that Sanford had or claimed to have any interest whatever in the land. If the Weekses purchased without notice of Sanford’s equities in the land, then of course the Weekses are entitled to the judgment rendered in their favor, because they were bona fide purchasers for value. As the written contract of December 8, 1879, was not acknowledged, it being filed for record did not impart notice to the Weekses, or anyone else. (Comp. Laws of 1885, ch. 22, §§ 9, 19, 20.) •
Sanford never made any improvements on the land after the date of his contract;’but it appears from the evidence that prior to the contract, under consent from Miss Bartholomew, he had taken possession of the land, or a part of it, and had made some improvements, consisting of the breaking of thirteen or fourteen acres, which were fenced with barbed wire and oak posts. There was quarried and corded up upon the land at the time considerable rock. There were, also, some preparations toward the construction of a lime kiln.. Sanford, however, had no house upon the land, and was not living thereon. According to the evidence of the Weekses, they had no notice nor knowledge at the time of their purchase that the improvements thereon had been made by Sanford, or that he had any interest or claim to the same. They made inquiries of the agents of their grantor, Miss Bartholomew, and were informed by them that she was the owner of
We have time and again stated that open, notorious, unequivocal and exclusive possession of real estate under an apparent claim of ownership is notice to the world of whatever claim the possessor asserts, whether the claim be legal or equitable in its nature. (McNeil v. Jordan, 28 Has. 7; Tucker v. Vandermark, 21 id. 263.)
If this were an action pending between Sanford and Miss S. E. Bartholomew, we would have no hesitation in holding that Sanford had actual possession of the premises; but this action is between Sanford and the Weekses, who claim to be innocent purchasers. The only question, really, for our determination is, whether there is sufficient evidence in the record to sustain the finding of the trial court that the Weekses had neither actual nor constructive notice before their purchase of the land that Sanford had, or claimed any interest therein. It was the province of the trial court to determine the credibility of all the witnesses. It seems to have wholly disregarded the evidence of Sanford. If there was injustice in this, we are unable to correct it. The evidence of Henry M. Weeks and Sanford directly conflicts. There was evidence that Sanford did not have open, notorious, unequivocal and exclusive possession of the land at the time of the purchase of the Weekses; therefore we cannot disturb the finding of the trial court, as there is evidence to sustain it. This conclusion necessarily causes an affirmation of the judgment.
Several errors are alleged concerning the admission and rejection of testimony. The briefs do not refer specifically to the pages of the record which counsel desire to have examined, and this of itself is a sufficient excuse for not commenting upon these alleged errors. Notwithstanding the failure of counsel to comply with the rules of practice promulgated by this court, we have read the record carefully, and find, in view of the
As the evidence sustains the findings of the trial court, notwithstanding one of the reasons given for the judgment is erroneous, the other reasons are sufficient, and the judgment must be affirmed.
