29 Kan. 373 | Kan. | 1883
The opinion of the court was delivered by
I, James Gladden, do hereby certify, ratify'and fully confirm all acts and agreements whatsoever, made and entered into by virtue of a certain power of attorney by me given to David E. James, attorney at law, bearing date the 8th day of July, 1858, and which power of attorney was given for the purpose of conveying, or settling, or compromising certain suits pending between me and one Silas Armstrong, concerning certain real estate, &c.; and I do furthermore hereby acknowledge in full force and absolute settlement the receipt of a bond for a deed of my full portion of said real estate, obtained by said James from said Armstrong in their final compromise of my said suits, namely: my original claims, as against said Armstrong, being about forty acres, after allowing said David E. James; claiming under a deed of convey-once from one Willis Wills, his full preemption claim of one hundred and sixty acres on the land adjoining mine, according to- a certain agreement and understanding between said Wills and myself as settlers on said lands, under and by virtue of his priority of settlement and preemption.claim made on said lands; and in accordance and by virtue of said compromise between said Armstrong and said James, my attorney, I do hereby acknowledge in full and absolute settlement the receipt of said bond for a deed to one three-eighths of said forty acres, being fifteen acres; and having allowed my said attorney, James, five acres of the same for his fees and for*378 moneys expended in the litigation of said suits, &c., I do, therefore, receive and accept in full and absolute and final settlement between said James and myself and all others claiming under me, the aforesaid bond for a deed to one undivided ten acres of my original claim of forty acres, in the west one-half of the S.W.-J of section No. eleven (11), and in the east one-half of S.E.-j- of section No. ten (10).
Received also a certain deed as demanded in the notice attached hereto.
In witness whereof, I hereunto set my hand and seal, this 5th day of March, A. D. 1860.
His
James X Gladden.
In presence of Joseph E. Snyder, Henry R. Seeger.
State oe Missouri, County oe Jackson, ss. Sworn to and subscribed before me, this 6th day of March, 1860.
[Seal.] Jno. S. Hough, Cl’k
By Louis P. Scott, D. C.
Know all men by these presents, that I, David E. James, of the county of Wyandotte and territory of Kansas, do hereby bind myself, my heirs and assigns, to convey unto James Gladden, his heirs and assigns, by a good and valid deed, one undivided ten acres of the west half of the S.W.J of sec: No. eleven (11), and of the E.J of the S.E.J of sec. No. ten (10), in T. No. eleven (11), being in the forks of the Kansas and Missouri rivers, in the county of Wyandotte, K. T., and all consisting of one undivided ten (10) acres. It is hereby covenanted and agreed that the aforesaid conveyance shall be made at any time within one year from the date of this instrument. It is also agreed and understood that said conveyance is to be made subject to and in accordance with the terms and conditions of a certain mortgage given upon said real estate by said James to one Silas Armstrong, apd which is recorded in the proper office of the county of Wyandotte, K. T.
In witness whereof, I have' hereunto set my hand and seal, this 5th day of March, 1860.
David E. James. [Seal.]
On the same day, Gladden assigned this bond to Henry R. Seeger by an instrument indorsed on the bond as follows:
Know all men by these presents, that I, the within-named James Gladden, in consideration of one thousand dollars to*379 me in hand paid by Henry R. Seeger, the receipt whereof I do hereby acknowledge, have bargained, sold, assigned and set over all my right, title, interest, claim, property and demand whatsoever in and to the within bond, unto the said Henry R. Seeger and his assigns forever.
In witness whereof, I have hereunto set my hand and seal, this 5th day of March, A. D. 1860.
His
James X Gladden, [l. s.]
, In'presence of Louis R. Scott, Joseph E. Snyder.
State of Missouri, County of Jackson. Be it remembered, that on this 6th day of March, 1860, before me, John S. Hough, clerk of the Kansas City court of common pleas, for Kaw township, in the county and state aforesaid, personally appeared James Gladden, who is well known to me as the person whose name is subscribed to the foregoing instrument of writing, and acknowledged the same to be his voluntary act and deed for the uses and purposes therein mentioned.
In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at office in the City of Kansas, on the day and date above written.
[l. s.] John S. Hough, Clerk.
By Louis B. Scott, Deputy.
Recorded October 1, 1860, at 5 P. M.
V. J. Lane, Register of Deeds.
By James A. Cruise, D. R.
This bond and the assignment were recorded in the office of the register of deeds of Wyandotte county, Oct. 1, 1860.
Afterward, James satisfied his bond by a conveyance to one Joseph E. Snyder, by direction of Seeger, as evidenced by another indorsement on the bond, of which the following is a copy:
State of Missouri, Jackson County, ss. In consideration of one dollar to me in hand paid, and the absolute fulfillment of the within bond, by conveyance of six acres of land to Joseph E. Snyder, by a deed dated July 27, 1864, and recorded on the 23d of October, 1868, in liber L of deeds, on pp. 135 and 136, in the office of register of deeds in and for the county of Wyandotte, state of Kansas, this bond, re*380 corded in said office in “Record A,” p.462, is hereby canceled and discharged, and absolutely fulfilled.
Henry R. Séeger.
Kansas City, Mo., April 28, 1869.
Witnessed by Joseph E. Snyder and R. Laths.
Recorded July 1, 1869, at 9 o’clock A. m.
James A. Cruise, Register of Deeds.
The mortgage of $50 per acre held by Armstrong upon the land conveyed to James, in pursuance of said compromise and settlement, was paid and satisfied by Lewellyn E. James, the son of David E. James. In August, 1871, David E. James died; and many of the other principal actors in the foregoing transactions, including Armstrong and. Wills, had also died before or about this time. On March 4, 1874, Gladden, who was then a resident of Buchanan county, Missouri, executed a deed for the land in controversy to Mary A. Yeamans, the plaintiff in this action, for an expressed consideration of $17,500; and thereupon, on July 11, 1874, Mrs. Yeamans commenced this action, in the district court of Wyandotte county, against the heirs of David E. James, deceased, and also against George B. Wood and Luther H. Wood, for the purpose of obtaining a decree that the defendants held the legal title to the land in trust for her benefit, and for the purpose of recovering the land from them. The defendants answered, setting up a general denial, and several other defenses. The case was tried by the court without a jury, at the July term, in 1876, and on December 23, 1876, the court made special findings of law and of fact, and rendered judgment in favor of the defendants, and against the plaintiff for costs. On June 20, 1879, a case was settled and signed by the judge of the district court for the supreme court, and on December 13,1879, the case, with a petition in error, was filed in the supreme court. On October 3, 1882, the the case was submitted for decision to the supreme court, but even then the plaintiff, with the permission of the court, took twenty days further time within which to file a brief in reply to the brief of the defendants in error.
The plaintiff in error claims that “the court erred in its third finding of fact, in finding that David E. James agreed to pay Silas Armstrong $50 per acre for the land deeded to James, the agreement as appears by the evidence being merely to subject the land so conveyed to the burden of $50 per acre.” We think the finding of the court below is substantially correct. James did agree to pay said amount, and the land was conveyed subject to such payment.
The judgment of the court below will be affirmed.