Arthur v. Arthur

• Decision Date: 10 March 1888
• Parties: ANNA ARTHUR, et al., v. CLARA E. ARTHUR
• Court: Kansas Supreme Court

17 P. 187

38 Kan. 691

ANNA ARTHUR, et al., v. CLARA E. ARTHUR

Supreme Court of Kansas

March 10, 1888

Error from Shawnee District Court.

ACTION brought by Clara E. Arthur against Adam Hageman, but he having died before answer, the action was revived against Anna, Samuel and Sarah Arthur, as his heirs, and Samuel Arthur as the administrator of his estate. Samuel and Henry Bealls were joined as parties defendant, against whom the plaintiff prayed incidental relief. The plaintiff sued as the widow and only heir of Frank Arthur, who was a grandson of Adam Hageman, and alleged that in November, 1878, Hageman had entered into a written contract with her late husband by which the former was to convey to the latter a certain farm near Rossville upon the payment of $ 1,100, which was to be paid in annual installments of $ 100 each. The plaintiff alleged that Frank Arthur died in August, 1880, and that previous to his death he had paid Hageman $ 700 on the contract; that since then the plaintiff had tendered the remainder of the $ 1,100, and had demanded a deed; and that Hageman had refused to accept the tender and to make a deed. She also alleged that she was ready to keep her tender good and to pay the money into court whenever so ordered; that the reason no copy of said bond was attached to her petition was the fact that said bond was not in her possession, but was in the possession of the defendants; that the same had never been recorded. And she prayed for the specific performance of the contract. The defendants answered by a general denial and a sworn specific denial of the execution of the alleged written contract. On the application of the defendants the court ordered the plaintiff to pay the residue of the alleged purchase-money, being $ 400, into court; and thereupon the plaintiff paid to the judge of the district court $ 400 which the court refused to pay over to the clerk of the court at the request of the defendants. Trial by the court, at the April Term, 1884. Special findings were requested and made and a judgment was rendered against the defendants requiring them to convey the land to the plaintiff; and, in default of such conveyance, it was adjudged that the judgment itself should operate as a conveyance. The defendants bring the case to this court.

Judgment reversed.

A. H. Vance, and G. C. Clemens, for plaintiffs in error.

Overmyer & Safford, and Wm. P. Douthitt, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.

This was an action to enforce the specific performance of a contract, which the plaintiff alleged was made by and between Adam Hageman and Frank Arthur, the husband of the plaintiff, which contract was claimed to have been in writing, signed by Hageman and wife. The execution of the contract was denied under oath by the defendants, which raises the issue of its existence. After laying a sufficient foundation as to the loss of the bond, the plaintiff, to establish its contents and execution, offered in evidence the deposition of the plaintiff, which deposition was admitted in evidence over the objection of the defendants. Plaintiff was asked, among other things, as follows:

"INTERROGATORY 7: Are you acquainted with the handwriting of Adam Hageman? How many times have you seen it? Ans.: I have seen a great deal of the handwriting of Adam Hageman; am perfectly familiar with it, and would know it anywhere I would see it.

"INT. 8. Have you ever seen a bond for a deed for the premises in controversy? How many times have you seen it? Ans.: Yes, sir. After we were married, I saw it in Arthur's trunk; he handed it to me; he told me to read it, and it was written in the handwriting of Adam Hageman, and signed by him and his wife, and was acknowledged by a notary public of Atchison county, Kansas, the acknowledgment being in his handwriting, but the body of the deed was written by Adam Hageman. I had it a number of times; perhaps as many as twenty times."

The answer to interrogatory 8 was objected to on the ground that no sufficient foundation had been laid, and because it was incompetent. We think the witness showed herself to be competent to testify as to the handwriting of Adam Hageman. Her evidence showed that she was familiar with his handwriting, and that she would know it wherever she saw it. This we think was sufficient; but as to the signature of Mrs Hageman, no foundation was laid. The witness was not shown to have ever seen her handwriting, or to have had any knowledge whatever about it. The witness did not pretend that she was present and saw the bond signed by Mrs. Hageman, but testified that the first she saw of the bond was after she was married to Frank Arthur, which the evidence showed to have been a long time after the bond was claimed to have been executed. The objection of...