29 Kan. 28 | Kan. | 1882
The opinion of the court was delivered by
A final matter is this: The tax deed was taken in the name of Daniel Sullivan. In' the fall of 1879 he had given the land to his co-defendant and son, John Sullivan, to clear off and fence for a homestead for himself. In pursuance of the supposed right thus obtained, John Sullivan' and his brother, the other defendant,- had entered upon the land, and cut and carried away the timber. ■ Daniel Sullivan’s connection with these acts was only that of having given the land to his son. The court, in substance, instructed a verdict against all three of the defendants, and now plaintiffs in error insist that as to Daniel Sullivan this instruction was erroneous. The exact testimony of the witnesses is not stated in the record, but only in a general way the scope and substance of the testimony. Now we think that something more must be shown than that the father had given the land to his son, before the former would be liable under the statute for the trespass of the latter. Possibly as the testimony fell from the lips of the witnesses, it may have disclosed some direct interference or assistance on the part of the father; but as the record now reads, and of course that concludes us, it states that Daniel Sullivan’s only connection with the trespass consisted in his having given the land to his son. This is an action under a statute. Treble damages- are recoverable, and before a party can be justly held liable therefor it should appear that he in some way aided and assisted in the trespass. He cannot be held responsible, because having at one time held a supposed title he has conveyed it to another party who thereafter commits the trespass. A different rule would .make it extraordinarily perilous for a party to convey a defective title, making him a quasi guarantor against subsequent wrongdoing of his grantees. The judgment, therefore, as to Daniel Sullivan will be reversed, and the case remanded for a new trial.
As to the other defendants, the judgment will be modified by reducing it to the sum of $33.33^, the amount of the