Allen v. Dodson

• Citation: 39 Kan. 220,17 P. 667
• Parties: EMMA A. ALLEN v. H. T. DODSON, as Sheriff, etc
• Decision Date: 07 April 1888
• Court: Kansas Supreme Court

17 P. 667

39 Kan. 220

EMMA A. ALLEN v. H. T. DODSON, as Sheriff, etc

Supreme Court of Kansas

April 7, 1888

[Copyrighted Material Omitted]

Error from Butler District Court.

ON the 13th day of March, 1886, Emma A. Allen filed her petition in the district court of Butler county, against H. T. Dodson the sheriff of that county, to restrain him from selling on execution a certain tract of land situated in said county and an undivided half of a lot in the city of Augusta claiming the land as her homestead, it having been the homestead of her husband before her marriage, and having been purchased by her from him subsequent to the marriage. She had also purchased from her husband the undivided half of the Augusta city lot. The sheriff had levied upon said real estate and advertised it for sale on the 24th day of March, 1886, by virtue of an execution to him directed on a judgment in favor of one Wm. McGarry, against B. F. Allen, the husband of the plaintiff. This judgment was rendered at the January term, 1886, of the district court of Butler county, the term commencing on the 5th day of January, and the judgment probably rendered on the 19th day of that month. Emma A. Allen obtained a temporary injunction from the probate judge of Butler county, on the 13th day of March, and this temporary restraining order was dissolved and vacated by the judge of the district court, at chambers, on the 22d day of March, 1886. On the 24th day of March the plaintiff in error dismissed the action by entering on the appearance docket an order of dismissal in these words, [title of cause]: "This case is hereby dismissed without prejudice.--EMMA A. ALLEN, by her attorney." On the same day, but at a later hour, the defendant filed an answer, setting up three distinct defenses to the cause of action stated in her petition, claiming that at the time of the rendition of the judgment in favor of McGarry, the real estate levied upon was owned by B. F. Allen, and was not his homestead, and was bound by the lien of said judgment; that on the 13th day of January, 1886, he conveyed the same to one T. A. Kramer, and on the 20th day of January Kramer conveyed the same to Mrs. Allen, and that the same conveyances were made for the purpose of avoiding the payment of the judgment, and were without consideration, and were fraudulent and void.

At the May term of the court, and on the 12th day of that month, the case being upon the trial docket, the attorney of Mrs. Allen filed a written motion to strike the same from the trial docket, for the reason that it had been dismissed by the plaintiff on the 24th day of March, 1886, and was so dismissed before the answer of defendant was filed. This motion was overruled, and an exception taken. A motion to make the answer more definite and certain was filed, heard and overruled, and an exception noted to the ruling. A demurrer was then filed to the answer, and this was heard and overruled, and an exception saved. A motion was then made to strike the case from the trial docket, and continue it until the next term of the court, for the reason that it was not at issue before the first day of the term, and this was overruled, and an exception noted. Trial was had on the 15th day of May, and after the evidence was all in, the court announced that the parties would be heard upon certain questions, and these being argued, the court rendered an opinion, and was then requested to make special findings of facts and conclusions of law; this request was refused, and an exception saved to the ruling. There was a decree for the defendant, setting aside the conveyances from Allen to his wife as fraudulent, as against McGarry, and subjecting all the real estate, excepting so much as lies west of the Florence, Eldorado & Walnut Valley Railroad, to sale on the judgment. The facts as disclosed on the trial are: that B. F. Allen, an unmarried man, (being a widower with one child,) was the owner of an undivided half, and was residing on the south half, of the southeast quarter of section twenty-one, and the north half of the northeast quarter of section twenty-eight, township eighteen, of range four east, in Butler county, on the 17th day of June, 1881. On that day he and his brother, who owned the other undivided half of said real estate, executed a right-of-way deed to the Florence, Eldorado & Walnut Valley Railroad Company, in the words and figures following, to wit:

"RIGHT-OF-WAY DEED.

Know all men by these presents, that B. F. Allen, unmarried, and C. C. Allen, unmarried, of the county of Butler, in the state of Kansas, in consideration of the sum of two hundred and fifty dollars in hand paid by the Florence, Eldorado & Walnut Valley Railroad Company, a corporation duly organized under the laws of the state of Kansas, have bargained and sold, and do hereby grant and convey unto the said Florence Eldorado & Walnut Valley Railroad Company, its successors and assigns forever, the following premises, situate in the county of Butler, in the state of Kansas, and described as follows: Commencing at a point where the center line of said railroad as now located crosses the south line of the north half of the northeast quarter on said south line one hundred and fifty feet; thence in a northeasterly course parallel to and one hundred and fifty feet from said center line of railroad to a point two hundred and seventy feet south of north line of said quarter-section line; thence west one hundred feet; thence northeasterly parallel to and fifty feet from the center line of said railroad to the north line of said quarter-section; thence west along said section line one hundred feet; thence southwesterly parallel to and fifty feet from the center line of said railroad, as now located, two hundred and seventy feet; thence west one hundred feet measured at right angles; thence southwesterly parallel to and one hundred and fifty feet from said center line of railroad, as now located, to the south line of said north half of said quarter-section; thence east along said line to the place of beginning, containing eight and three-tenths acres, more or less. This land is to be used for depot, stock yards, and side tracks, and when no longer used for railroad purposes to revert to grantor. Also a strip of land fifty feet in width on each side of the center line of said railroad, as now located, across, over and through the south half of the southeast quarter, section twenty-one, township twenty-eight, range four east, situated in Butler county, Kansas, containing three and two-tenths acres, more or less: to have and to hold said premises, with the appurtenances, unto the said Florence, Eldorado & Walnut Valley Railroad Company, its successors and assigns, forever; and the said B. F. Allen and C. C. Allen, for themselves and heirs, do hereby covenant with said railroad company, its successors or assigns, that they are lawfully seized of the premises aforesaid; that the premises are free and clear of all incumbrances whatsoever, and that they will forever warrant and defend the same, with the appurtenances, unto the said Florence, Eldorado & Walnut Valley Railroad Company, its successors and assigns, against the lawful claims of all persons whomsoever.

"In testimony whereof, the said B. F. Allen (unmarried) and C. C. Allen (unmarried) have hereunto their hands, this 17th day of June, 1881.

B. F. ALLEN.

C. C. ALLEN."

In October, 1881, B. F. Allen was married to Emma A. Cease, a widow with two children, who owned a farm adjoining his. She was the statutory guardian of the children. Before the marriage, in 1880, she had sold to Allen corn and stock to the amount of $ 150. In September following he borrowed from her $ 250; the same fall he bought from her 2250 bushels of corn at 53 cents per bushel, amounting to $ 1,192.50; the next year he bought 2500 bushels of corn from her at 25 cents per bushel, $ 625. In the fall of 1883, he bought from her 250 bushels of wheat at 80 cents per bushel, $ 200. For this borrowed money and grain he executed his notes and delivered them to Mrs. Allen, who held them until sometime in July 1885, when they were surrendered to him in consideration of a deed executed by him to her, conveying to her the property heretofore described. There was a mistake in this deed, and the deed to T. A. Kramer on the 13th day of January, 1886, and from Kramer to her on the 20th of January,...