86 Kan. 487 | Kan. | 1912
The opinion of the court was delivered by
In 1885 Samuel Leeper, sr., a widower, was the owner of a tract of land on which he lived. In that year his daughter, Mary Schoonover (with her husband), began living with him, and after he died, in September, 1894, she continued in the occupancy'of the land until her own death, in May, 1909, after which her heirs held possession. In November, 1909, an action was brought for partition, in which a controversy was tried'between Phoebe Patton, a daughter of Samuel Leeper, sr., who claimed an interest in the property as his heir, and Mary Schoonover’s heirs, who claimed to own it all, first in virtue of an oral contract between her and her father that he was to devise the property to her in consideration of her caring for him during the remainder of his life, and second by reason of the fifteen-year statute of limitations. The trial court found in favor of the heirs of Mary Schoonover, and Phoebe Patton appeals.
The findings will therefore be spoken of as the established facts of the case. The principal question of law arising upon them is whether there was such a performance of the oral contract on the part of Mary Schoonover as to take it out of the operation of the statute of frauds. (Gen. Stat. 1909, § 3838.) She lived with her father from 1885 to 1894, taking care of him during that time. In 1890 he was adjudged to be feeble-minded and a guardian of his person and estate was appointed. After' his death she made various improvements upon the land, building a barn, an addition to the house, and some fencing, the total cost amounting to about $510. The appellant relies upon the doctrine that possession, in order to take a case out of the statute of frauds, must be notorious, exclusive, and in pursuance of the contract (Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568), and maintains that here the possession of Mary Schoonover was not- of this kind, • because it'was shared with her father until his death, and thereafter was constructively shared by her coten-ants, she being one of several heirs. It may be sufficient to say that her possession was at all times as exclusive- as the terms of the contract would permit
In view of this conclusion we need not determine whether an adverse possession for fifteen years had been held by Mrs.,.Schoonover and her heirs. A point is sought to be made against them on the ground.that she obtained deeds from two of the heirs of her father, and tried to get one from the appellant. This did not
The judgment is affirmed.