Bryan v. McNaughton

• Decision Date: 10 December 1887
• Parties: MARGARET BRYAN, et al., v. J. P. McNAUGHTON
• Court: Kansas Supreme Court

16 P. 57

38 Kan. 98

MARGARET BRYAN, et al., v. J. P. McNAUGHTON

Supreme Court of Kansas

December 10, 1887

Error from Miami District Court.

EJECTMENT by McNaughton against Bryan and others. Judgment for plaintiff, at the February Term, 1886. The defendants bring the case here. The opinion contains a statement of the facts.

Judgment of district court will be reversed, cause remanded for a new trial.

W. H Browne, and Thos. M. Carroll, for plaintiffs in error.

Brayman & Sheldon, for defendant in error.

OPINION

HORTON, C. J.:

This was an action in the nature of ejectment, brought by McNaughton against Mrs. Bryan and children, to recover two hundred and twenty acres of land, situated in Miami county. The facts in the case as claimed by Mrs. Bryan and children are as follows: On the 31st day of August, 1865, Edward Coughlin purchased of Joseph Johnson, a member of the Shawnee tribe of Indians of Kansas, the lands in controversy, paid him the purchase-price thereof, and Joseph Johnson made a warranty deed therefor. Coughlin took possession of the lands, made improvements thereon, occupied the one hundred-and-sixty-acre tract as his homestead, and continued in the possession of the land up to the time of his death, in March, 1878. Subsequently his widow, now Margaret Bryan, and his children, continued for some years to occupy the land, and were in possession of the same at the beginning of this action. Sometime in the year 1881, Mrs. Bryan discovered that there was a defect in the title of herself and children to this land; that the deed of conveyance to Joseph Johnson, and also a subsequent deed from Thomas Johnson and Nancy Johnson, as sole heirs of Joseph Johnson, for said lands, had never been approved by the secretary of the interior, and that the Indian title to the land had never been extinguished. Soon after this discovery she went to Paola and called on the real-estate firm of Oakman & Clover for assistance in perfecting her title. This firm was principally engaged in fixing up Indian titles and trafficking in Indian titles. She gave her deeds to Clover, who promised to examine her title and ascertain what could be done. In the spring of 1882, Clover was several weeks in Washington city, and among other business was trying to have the Coughlin deeds approved by the secretary of the interior. While still in Washington, the secretary of the interior returned the deeds to Clover, at Paola, with the reasons why the deeds could not receive the approval of his office. This letter was received by Oakman in the absence of Clover, and opened by him. On the same day that Oakman received the letter and deeds from the department, Mrs. Bryan called at his office to find out when Clover would return, and ascertain the situation in regard to her deeds. Oakman read her the letter, and stated the reasons why the deeds could not be approved, and also informed her that it would be necessary to go down into the Indian territory and obtain a deed from the heirs of Joseph Johnson, and have the same approved by the secretary of the interior, in order to perfect her title. Oakman agreed to do this for her for the compensation named, and at the same time told her it would require some time to get it through, and told her to rest easy. Acting under this assurance, and relying on the promise of Oakman to perfect her title, she gave the matter no further attention.

On August 25, 1883, McNaughton obtained a conveyance of the land from Hiram Johnson, the alleged sole heir of Joseph Johnson and Mary Johnson his wife. Upon the face thereof the consideration was two thousand six hundred and forty dollars. This deed was approved January 5, 1884, and on March 4, 1885 McNaughton commenced this action against Mrs. Bryan and her children. The answer of Mrs. Bryan and children set forth the original purchase and occupation of the land by Edward Coughlin; the contract with Oakman to perfect their title, for the sum of one hundred dollars and expenses; that, in violation of this agreement to obtain title for Mrs. Bryan, he had procured title to be taken in the name of McNaughton, and that Oakman was interested in the land with McNaughton, and was a necessary party for a full and final determination of the controversy; that she tendered into court the sum of one hundred dollars, and offered to pay the reasonable expenses incurred in obtaining such deed, and asked that Oakman be made a party to the suit, which was accordingly done; that the title was taken in the name of McNaughton for the purpose of cheating and defrauding the defendants out of their land; that...