Burditt v. Burditt

• Decision Date: 09 March 1901
• Docket Number: 11,844
• Citation: 62 Kan. 576,64 P. 77
• Parties: A. L. BURDITT v. MARTHA BURDITT et al
• Court: Kansas Supreme Court

64 P. 77

62 Kan. 576

A. L. BURDITT v. MARTHA BURDITT et al

No. 11,844

Supreme Court of Kansas

March 9, 1901

Decided January, 1901.

Error from Osage district court; WILLIAM THOMSON, judge.

STATEMENT.

THIS action was brought to quiet title. The plaintiffs below were the widow and son, and defendant below a brother, of one A K. Burditt, deceased. In 1870 the said A. K. Burditt purchased the improvements upon the property in controversy from the occupant thereof and settled upon the claim with the intent and believing that he had the right to make homestead entry thereof. From the date of his settlement until 1877, he and his family resided upon the land, the same not being subject to homestead entry but to preemption. A. K. Burditt for some reason not shown in the record, being unable or disqualified to make preemption of the land, one John C Adams took up his residence thereon, and on the 26th of January, 1878, made proof of his right to and did preempt it under the act of 1841. A. K. Burditt was the principal witness for Adams in making proof to this claim. By prearrangement, the money used by Adams in making payment to the government was furnished by the defendant below, A. L Burditt, who at the time resided and now resides in the state of Massachusetts, and at the time it was contemplated that Adams should secure the payment of the money by mortgage on the land. This project, however, was abandoned, and, in consideration of the preemption price and an additional sum of fifty dollars, Adams conveyed the land by deed of general warranty, on the same day of his making proof, to defendant A. L. Burditt.

About four months after this conveyance to defendant below, and under written contract with one Preston, defendant caused to be erected upon the premises a dwelling-house at a cost of $ 435. A. K. Burditt with his family continually resided upon this land, cultivating it as a farm and using it as a home, until the date of his death, in March, 1895, except a short period prior to his death, when he was in the soldiers' home, at Leavenworth.

This action was commenced on the 20th day of November, 1899. The petition alleged, among other things, that the money expended by the defendant in making purchase of this property from the government had been repaid, but "if it shall appear that said sum has not been paid to said defendant and that any sum is due him on account of said money, that they here tender and offer to pay the same into court or as the court may direct," and prayed a decree quieting the title in plaintiffs. The defendant in his answer, among other things, alleged the purchase of the property from John C. Adams and the payment of the sum of $ 300 therefor; the improvement of the property by the erection of a dwelling-house upon the same, at a cost of $ 435; the payment of taxes on the property at different times from 1879 to 1899, aggregating in amount $ 265.62; and the advancement to his brother of various sums of money, from December, 1881, to November, 1889, aggregating in amount $ 782.80, no part of which had been repaid; that it was the understanding and agreement between defendant A. L. Burditt and his brother that, upon payment of the amounts of money expended in the purchase, improvement and preservation of the property, and also the amounts advanced to A. K. Burditt, defendant would convey the property in controversy to A. K. Burditt, but not otherwise. The amounts claimed by defendant were set forth in an itemized account, which in the aggregate, including interest at the rate of six per cent. per annum, amounted to $ 3478.02. To this answer the plaintiff, in reply, pleaded the bar of the statute of limitations. Before trial below, Alice Mabie, formerly Alice Burditt, filed a disclaimer of any interest in the suit, and was dismissed therefrom.

Upon a trial, the district court rendered judgment quieting the title to the property in the remaining plaintiffs below and against defendant. To reverse this judgment this proceeding in error is prosecuted in this court.

Judgment reversed.

J. H. Stavely, for plaintiff in error.

Chas. B. Graves, and Joe Rolston, for defendants in error.

OPINION

POLLOCK, J.:

The undisputed evidence adduced upon the trial below clearly shows that defendant A. L. Burditt furnished the money with which entry of this property was made by John C. Adams from the government, and in addition thereto paid said Adams fifty dollars for a conveyance of the property and, further, that he made the...