43 Kan. 538 | Kan. | 1890
Opinion by
The defendant in error, Isadora Hawks, filed her petition in the district court of Wabaunsee county in April, 1885, in which she demanded partition of certain real estate, alleging that she was the owner of an undivided half thereof and that Levi Stratton was the owner of the other half. Stratton answered, denying her ownership of an undivided half of the land, and claiming that one Jacob Beard was the owner of that part of the land claimed by her. Jacob Beard and Permelia his wife, by permission of the court, were made parties, and they filed answers claiming that Jacob Beard was the owner of that part of the land claimed by Isadora Hawks. The real controversy was between Isadora Hawks and Jacob Beard as to the ownership of the one undivided half of the real property. The case was tried by the court, which rendered a judgment partitioning the land between Isadora Hawks and Levi Stratton. Beard brings the case here.
The objections made by the attorneys of the defendant in error, that the petition in error was not filed within a year, and that the case-made does not show affirmatively that the motion for a new trial was filed in time, are not well taken, and are both overruled. The history of the transaction out of which arises the contention about ownership, is as follows: On the trial of the case, title was admitted from the government down to Levi Stratton and Jacob Beard. The principal question was whether Beard and wife had executed a deed for their interest in the land to one R. M. Thompson, through whom Isadora Hawks claims. The defendant in error, to maintain the issues on her part, introduced as a witness the register of deeds of Wabaunsee county, who brought with him the record of a deed from Beard and wife to Thompson, which was offered in evidence. The deed was claimed as a forgery by Beard and wife, and they objected to the intro
Another objection to the introduction of the deed, or rather the record of it, was made on account of a defective acknowledgment; but as the objection is a general one, and no particular defect is pointed out or insisted on in the brief of counsel for plaintiffs in error in this or the subsequent deeds
It is also insisted with vigor and ingenuity that there was no delivery of the deed from Beard and wife shown by the record. This was one of the most closely-contested questions involved in the case. The direct evidence bearing upon it was conflicting. Many circumstances were shown from which strong inferences arose tending to support both theories. The judgment rendered by the trial court necessarily includes a finding that there was a delivery of the deed to Thompson, because if the trial court had been of the opinion that there had been no delivery of the deed, the inevitable result would have been that the judgment would have been rendered in favor of the party now here complaining. It is true beyond all qualification, that there is some evidence to support the finding contained in the judgment that there was a delivery of the deed to Thompson; hence we cannot disturb the judgment for the reason urged, without entirely disregarding well-established rules. We have discussed the material questions sufficiently; the others are unimportant. There are no reversible errors in the record.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.