32 Kan. 533 | Kan. | 1884
The opinion of the court was delivered by
This was an action in the nature of a suit in equity, brought by Hester A. Wolf against Larkin Washer and David Wolf, to set aside a deed of conveyance purporting to have been executed by the said David Wolf and Hester A. Wolf, husband and'wife, to Larkin Washer, and conveying to Washer certain real estate situated in Wyandotte county, Kansas, and belonging to David Wolf. It appears that in 1871 David Wolf and Hester A. Wolf,' his wife, with their six or seven children, moved upon the land in dispute and occupied the same as their homestead from that time up to September, 1875, when they leased the same to a man named Megley, and removed therefrom to the state of Arkansas, where they resided until September; 1878, when they removed to aplace near Westport, Missouri, where they resided until about January 20, 1880, when they executed a deed for the land to Philip Branner. This deed was left-in escrow with Nathan Cree, to hold until Branner performed on his part, which was to pay off a judgment of $430 then existing against Wolf and wife, and to convey to David Wolf another piece of land, valued at $1,000. This judgment was rendered upon the foreclosure of a mortgage given by. the Wolfs for a part of the
■ There are some other facts in the case of a material character, which will hereafter be stated. On February 8, 1882, Mrs. Wolf commenced this present action to set aside the foregoing deed to Washer. Afterward, and on December 28, 1883, the case was regularly called for trial, and was tried by the' court without a jury, and at the close of the plaintiff’s evidence the defendants filed a demurrer thereto, upon the following ground, to wit: “No cause of action is proved in favor of said plaintiff and against said defendants.” The court below sustained the demurrer, and rendered judgment in favor' of the defendants and against the plaintiff for costs. The plaintiff then moved the court for a new trial, upon various grounds, which motion was overruled by the court. On March' 8, 1884, a case was duly settled and signed for the supreme court, and the plaintiff, as plaintiff in error, now brings the case to this court for review.
Did the court below err in sustaining said demurrer? We think it did, and we shall now proceed to- state some of the other facts which we think show that the court below did so err.
We think, however, that there was sufficient evidence on the part of Mrs. Wolf, if it were not contradicted by any other evidence — or rather, if the contradictory evidence were not considered — tó show that she has never abandoned their land as a homestead, and has never consented, except upon the condition aforementioned, that it should be alienated from her. And if such of her evidence is true, and may be relied on, then the decision of the court below was erroneous. It has already been settled by this court, that upon a demurrer to evidence the court cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer. (Bequillard v. Bartlett, 19 Kas. 382; Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 id. 1.) In order to sustain a demurrer to the evidence, -the court must be able to say, as a matter of law, that the party introducing the evidence has not proved his case; and the court cannot, upon conflicting and contradictory evidence, say that as a matter of fact the preponderance of the evidence shows that the party introducing it has not proved his case. If in the present case no demurrer to the evidence had been interposed, and the case had been submitted to the court upon the evidence introduced, for a decision upon the merits and as to what the conflicting and contradictory evidence in fact proved, and the court had decided the case in favor of the defendants and against the plaintiff, the decision in -all probability would be right; for in such a case the court would have weighed the conflicting and contradictory evidence, and would have decided the case upon the preponderance of the evidence; but the court cannot do such a thing where a demurrer to the evidence is
'Whether the plaintiff will ever be able to recover in this case, or not, we cannot tell; but in anticipation that she may possibly recover, it will be well for the defendant Washer to so amend his pleadings that he can have a judgment rendered that the property in dispute shall be sold at judicial sale to satisfy the judgment heretofore rendered on the mortgage, and which he has paid.
The judgment of the court below will be reversed, and the cause remanded for a new trial.