Bard v. Elston

• Decision Date: 03 January 1884
• Citation: 31 Kan. 274,1 P. 565
• Parties: WILLIAM BARD v. ELIAS ELSTON
• Court: Kansas Supreme Court

1 P. 565

31 Kan. 274

WILLIAM BARD v. ELIAS ELSTON

Supreme Court of Kansas

January 3, 1884

Error from Johnson District Court.

FORCIBLE detainer, brought by Bard against Elston. Trial at the November Term, 1882, and judgment for defendant for costs. Bard brings the case here. The opinion states the facts.

Judgment affirmed.

I. O Pickering, for plaintiff in error.

A Smith Devenney, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of forcible detainer, commenced in a justice's court, and appealed to the district court, where the judgment now complained of was rendered. The plaintiff in error was plaintiff below, and the defendant in error was defendant below. The case was tried by the court and a jury, and a verdict and judgment were rendered in favor of the defendant and against the plaintiff for costs.

The plaintiff now insists that the court below committed error in giving instructions to the jury, and in refusing instructions. The court on its own motion gave a general charge to the jury, which charge was divided into fourteen separate paragraphs, and numbered. The record shows that the plaintiff excepted to this charge, in the following form, to wit: "To the giving of all and each of said instructions by the court, the plaintiff then and there duly excepted, and excepts." Under the previous rulings of this court, this exception will be held to be sufficient. ( K. P. Rly. Co. v. Nichols, 9 Kan. 235; A. T. & S. F. Rld. Co. v. Retford, 18 id. 245.) The supreme court will presume from such an exception that the plaintiff duly excepted to each separate paragraph and portion of the charge. In many states, such an exception would not be held to be sufficient.

The court below, at the request of the defendant, also gave to the jury five or more separate and distinct instructions, to the giving of which the plaintiff excepted, as the record shows, in the following form: "To the giving of which said instructions as asked by defendant, and to the refusal of said court to charge said jury as requested by the plaintiff, the plaintiff then and there duly excepted, and excepts." This seems to be one general exception to all the instructions given at the instance of the defendant, and not a distinct and separate exception to each of such instructions; and therefore we think the exception is not sufficient, further than to authorize this court to examine the general scope or drift of such instructions in the aggregate. (K. P. Rly. Co. v. Nichols, 9 Kan. 235; Sumner v. Blair, 9 id. 521; City of Atchison v. King, 9 id. 551; Ferguson v. Graves, 12 id. 39; Williams v. Joy, 15 id. 389; Fullenwider v. Ewing, 25 id. 69; Goodsell v. Seeley, 46 Mich. 623, 10 N.W. 44; Adams v. The State, 25 Ohio St. 584; Jones v. Osgood, 6 N.Y. 233; Eldred v. Oconto Co., 33 Wis. 133; University, &c., v. Shanks, 40 id. 352; Brown v. Kentfield, 50 Cal. 129; Ins. Co. v. Sea, 88 U.S. 158, 22 L.Ed. 511.)

The record does not purport to contain the entire charge of the court, nor all the instructions given; and hence this court cannot consider the instructions refused. (Ferguson v. Graves, 12 Kan. 39; Pacific Rld. Co. v. Brown, 14 id. 469; Fullenwider v. Ewing, 25 id. 69, 70.) There is probably enough in the record, however, to raise the main question desired to be raised by the plaintiff, and that is whether the statute relating to frauds and perjuries so applies to this case as to enable the plaintiff to avoid a certain lease of real estate which the defendant claims was previously entered into between the plaintiff and the defendant. This question we shall now proceed to consider.

Ever since the year 1858, the plaintiff, who resides in Wisconsin, has been the owner of the northeast quarter of section seven, township fourteen, range twenty-three, in Johnson county, Kansas; and during nearly all that time James Frame, who resides near the land, has been the plaintiff's agent with respect thereto. Up to 1876, this land was unfenced, uncultivated and unimproved prairie land. In 1876, Frame orally leased the land to Elston for the term of six years, the lease to commence on March 1, 1877, and to end on March 1, 1883. Also, at the same time and in connection with such lease, Frame gave to Elston the privilege of entering upon said land during the year 1876 and making improvements thereon, which Elston did. This lease and all the arrangements made between Frame and Elston with regard to the land were wholly in parol. In 1877, Elston took full and complete possession of the land under the lease. He fenced the land, plowed it, cultivated it, built a dwelling house, a barn and crib thereon, dug three wells, and made other valuable improvements on the land, and paid all the taxes thereon. Elston was still in the possession of the land when this suit was brought to oust him therefrom, on March 8, 1882.

The plaintiff claimed in the court below that Frame had no authority to lease the land to any person, or for any period of time. He also claimed that he, the plaintiff, never ratified or assented to the lease made by Frame to Elston. He also claimed that the lease was only for five years, and that it terminated on March 1, 1882. He also claimed that Elston in 1880, agreed (without any additional consideration, however, and not in writing) to quit the premises, and to surrender them back to him, the plaintiff, on March 1, 1882. But upon all these questions the jury found against the plaintiff and in favor of the defendant, upon sufficient evidence, and the court below sustained the verdict; and therefore, under the well-settled rules of this court, this court must consider the facts as thus settled and established by the trial court as the facts of the case, and this court can consider and determine only such questions of law as may arise upon these facts. The plaintiff also claimed in the court below, and claims in this court, that the lease made by Frame to Elston was void under the statute of frauds. Now, that said lease was void under the statute of frauds, when it was originally made, and before any portion of the same was executed, we think there can be no doubt. (Statute of Frauds, Comp. Laws of 1879, ch. 43, §§ 5, 6; Wolf v. Dozer, 22 Kan. 436; Powers v. Clarkson, 17 id. 218; Carr v. Williams, 17 id. 575, 582; Franklin v. Colley, 10 id. 260; ...