Armstrong v. Brownfield

• Decision Date: 13 June 1884
• Citation: 4 P. 185,32 Kan. 116
• Parties: JAMES ARMSTRONG v. B. H. BROWNFIELD
• Court: Kansas Supreme Court

4 P. 185

32 Kan. 116

JAMES ARMSTRONG v. B. H. BROWNFIELD

Supreme Court of Kansas

June 13, 1884

Error from Atchison District Court.

ACTION brought by James Armstrong against B. H. Brownfield, on March 30, 1883, in the district court of Atchison county. The petition alleges that the plaintiff is the absolute owner in fee simple of the north half of the northwest fractional quarter of section No. 2, in township 5 south, of range No 18, east of the 6th P. M.; that he is entitled to the possession thereof; that the defendant unlawfully keeps him out of the possession of the south 4 1/4 acres thereof; and that said defendant has been in possession of the said 4 1/4 acres since March 26, 1883, receiving the rents and profits to the damage of the plaintiff in the sum of $ 25. The defendant, on April 25, 1883, filed an answer to the petition, containing a general denial. Trial had at the June Term of the court for 1883, and judgment rendered for plaintiff. This judgment was set aside on motion, as provided by law, and the second trial of the action was had at the November Term of the court for 1883, a jury being waived. The court found and stated the conclusions of fact as follows:

"1. On November 12, 1858, James A. Craighead entered in his own name, at the United States land office at Kickapoo, the northwest quarter (1/4), section two (2), township five (5) range eighteen (18), in Atchison county, Kansas territory said tract containing one hundred and sixty-four 26/100 acres. The entry was made upon a land warrant for one hundred and sixty acres, which had been assigned to said James A Craighead by Aaron M. Weddle, who also furnished the said James A. Craighead the money to pay for the four and 26/100 acres, upon the understanding that the said Aaron M. Weddle was to have the extra four and 26/100 acres.

"Afterward, on the same day, said James A. Craighead executed and delivered to the said Aaron M. Weddle a deed for the south half of the northwest quarter (1/4), section two (2), township five (5), range eighteen (18), to contain eighty-four and 26/100 acres, be the same more or less, and on the same day, said James A. Craighead executed to the said Aaron M. Weddle a bond for a deed for the north half of the northwest quarter, section 2, township 5, range 18, containing eighty acres, be the same more or less.

"On September 20, 1859, said Aaron M. Weddle and wife mortgaged to one Pennington the south half of northwest quarter (1/4) section two (2), township five (5), range eighteen (18), to contain eighty-four and 26/100 acres, more or less.

"On October 15, 1870, the heirs of said Aaron M. Weddle executed and delivered to John Dillon a deed for south half of northwest quarter (1/4), section two (2), township five (5), range eighteen (18), the same that was formerly owned by Aaron Weddle.

"On January 29, 1881, the heirs of John Dillon executed to the defendant, B. H. Brownfield, a deed for a three-fourths interest and a bond for a deed for a one-fourth interest in south half of northwest quarter (1/4), section two (2), township five (5), range eighteen (18), containing eighty acres, more or less, reciting that it was the interest inherited by the grantors, as heirs of John Dillon. Said instruments were all duly and severally recorded.

"2. Said quarter-section of land, containing one hundred and sixty-four (164) acres, was patented to said James A. Craighead July 16, 1860.

"On June 3, 1876, the county clerk of Atchison county executed to F. Neerman, in due form of law, a tax deed on a sale for taxes for north half (1/2) northwest quarter (1/4) section two (2), township five (5), range eighteen (18), containing eighty acres.

"On June 7, 1877, said James A. Craighead and his wife executed and delivered to John Beeby a quitclaim deed for north half (1/2) northwest quarter (1/4) section two (2), township five (5), range eighteen (18), containing eighty acres, more or less.

"On August 2, 1877, said F. Neerman and wife executed and delivered to said John Beeby a quitclaim deed for north half (1/2) northwest quarter (1/4) section two (2), township five (5), range eighteen (18); and on the same day said John Beeby and wife executed and delivered to the plaintiff, James Armstrong, a warranty deed for north half (1/2) northwest quarter (1/4) section two (2), township five (5), range eighteen (18), containing eighty acres, be the same more or less.

"Said instruments were all duly and seasonably recorded.

"3. It was the intention of said James A. Craighead, at the time he executed and delivered said deed of November 12, 1858, to Aaron M. Weddle, to convey to said Aaron Weddle the south 84 and 26/100 acres of said quarter-section of land, the 4 26/100 acres being in consideration of said Aaron M. Weddle having paid for the same at the time of the entry.

"4. The lines bounding said section of land, according to the government survey, are as follows: The north line is 80 chains in length, the quarter corner being 40 chains from the section corner; the west line is eighty chains and 99 links in length, the quarter corner being 40 chains and 99 links south of the northwest corner, and 40 chains north of the southwest corner of said section; the south line is 80 chains and 32 links in length, the quarter corner being 40 chains and 16 links from the section corner; the east line is 81 chains and 29 links in length, the quarter corner being 40 chains north of the southeast corner, and 41 chains and 29 links south of the northeast corner of said section.

"The government survey shows the section to contain 649 12/100 acres.

"The north part of the section is also subdivided by a line 21 chains and 29 links south of the northeast corner, and 20 chains and 99 links south of the northwest corner of said section, and running across said section east and west, and in the northwest quarter (1/4) of said section there is a north-and-south line running north from last-named line, dividing the land into tracts of forty-two (42) and 5/100 acres in northwest, and forty-two (42) and 21/100 acres in northeast of said quarter-section.

"The north part of the northeast quarter of said section is in like manner divided into tracts of forty-two (42) and 36/100 acres and forty-two (42) and 50/100 acres respectively, the larger tract being in the northeast part of the quarter-section.

"5. In January, 1883, the defendant endeavored to have the boundary line between his land and that of plaintiff established by the county surveyor, by proceedings under the act of 1879, but the proceedings were irregular and void.

"6. The defendant has been in the occupation of the four (4) and 26/100 acres of land in dispute, and receiving the rents and profits thereof, ever since April, 1883, and the value of the rents and profits during said time has been twelve dollars ($ 12) and 75/100.

"The plaintiff is in the occupation of the north 80 acres of said quarter-section of land, but the defendant kept the plaintiff out of the possession of the four (4) and 26/100 acres of land, now in dispute between them, which lies between the north 80 acres and the south 80 acres of said quarter-section of land.

"7. Under the usage of the government of the United States, in the sale and disposition of the public lands, if a person had applied for the preemption or purchase of north half of northwest quarter, section (2), township five (5), range eighteen (18), he would have been compelled to pay for eighty-four (84) and 26/100 acres of land, and his patent for north half (1/2) of northwest quarter (1/4), section two (2), township (5), range eighteen (18), would have included the two north subdivisions of the quarter-section, of forty-two (42) and 5/100 acres and forty-two (42) and 21/100 acres respectively, being in all eighty-four (84) and 26/100 acres."

Thereon the court made the following conclusions of law:

"1. By the conveyance of November 12, 1858, from James A Craighead to Aaron M. Weddle, said Aaron M. Weddle obtained the equitable title to the four (4) and 26/100...