90 Kan. 588 | Kan. | 1913
The opinion of the court was delivered by
This is an appeal from an order setting aside a judgment. The question is: Was such judgment void? In April, 1907, the plaintiff sued the defendant for partition, alleging that she was the widow of P. V. Shafer, who in September, 1900, conveyed to her by warranty deed the land in question, which was and continued to be her homestead; that under the deed, which was executed without the plaintiff’s consent or concurrence, the defendant, the only child, then of age, had a vested estate in remainder in an undivided one-half interest in the land, and the widow had an undivided one-half interest in fee simple. The prayer was for partition and a decree that the interest of the plaintiff be a one-half interest in fee simple, and that she be held not liable for rents and profits theretofore or thereafter accruing. The deed described the quarter section and purported to convey to the wife, subject to the express condition that “this property above described is to be held by my wife, Mariah E. Shafer, and reserved to her, during her natural life for her sole use and benefit, and at her death is to pass to and become the property of my daughter, Josephine E. Covey, nee Josephine E. Shafer, her heirs and assigns.” Service was made by publication, and on July 12, 1907, a decree was entered finding that the plaintiff had not remarried, that the daughter was of age before the action was begun, that the grantor had taken and proved up the land as a homestead, and that since his death it had been occupied and claimed by the plaintiff as a homestead, and that at the time of the conveyance she neither consented thereto nor concurred therein; that she was seized of an estate in fee simple
This left the decree in partition in the condition of giving each one-half the land in fee, and charging the plaintiff with $250 on account of the improvements on her half. Of course the time for setting aside or modifying the judgment had passed and only to the extent
The defendant maintains that the deed was void and that the allegation that it was not consented to means that it was of no force or effect in any way, and hence could not be deemed a conveyance as to the other half of the land; that the allegations having shown that the deed was void, the court had no jurisdiction to decree that it had any effect as to a life interest. Suppose the deceased had made two deeds, one conveying
It is suggested that the judgment of September 6, 1907, was the only one attacked and that this was merely ancillary and complementary to the real judgment of July 12, previous, which settled the law of the case. The motion was 'to set aside in part the judgment rendered, “on about the 6th, day of September, 1907,” but the order entered apparently affected only the judgment of that date, and no language was used showing an intention to change or modify the one rendered July 12. However, this is not-important in view of our decision.
The defendant argues that land held partly in fee and partly in remainder can not be partitioned in fee-. It seems to be the rule that none but cotenants can
It is contended that the question' of the life estate was not within the issues, but we think the petition, the deed set out as a part thereof, and the prayer, although somewhat lacking in fullness and precision, fairly presented the matter for decision, and that the ruling first made by the court was correct.
While the prayer asked only for a holding that the plaintiff was entitled to a fee-simple interest in one-half, still the allegation that she had occupied and claimed it all as her homestead ever since her husband’s death, and still claimed it as such, was suf
The order setting this aside in part is overruled.