Chapman v. Price
| Decision Date | 09 October 1884 |
| Citation | 32 Kan. 446,4 P. 807 |
| Parties | G. W. CHAPMAN AND GEORGE H. COLEMAN, as Executors of William Appleton, deceased, v. JOSIAH PRICE |
| Court | Kansas Supreme Court |
Error from Mitchell District Court.
EJECTMENT brought by Chapman and another, as executors of the will of William Appleton, deceased, against Price. At the October Term, 1883, the court sustained defendant's demurrer to the plaintiffs' petition, and rendered judgment against them for costs. They bring the case here. The facts appear in the opinion.
Judgment affirmed.
J. M Ragaman, for plaintiffs in error.
W. J Patterson, and Frank J. Kelley, for defendant in error.
OPINION
The plaintiffs, by their petition in the court below, allege that about the first day of April, 1870, William Appleton, under the provisions of the United States homestead law, passed May 20, 1862, entered the northeast quarter of section 35, in township 6 south, of range 10 west, in the district of lands subject to sale at Kirwin, Kansas; that pursuant to and in consequence of such entry a patent has been issued by the United States to the heirs of said Appleton; that about April 17, 1874, Appleton made his, will devising said land to G. W. Chapman, G. H. Coleman, S. H. Pilot, and Peter Appleton, executors appointed by his will, in trust for the use and benefit of his heirs; that these plaintiffs alone have qualified as executors, and are the only qualified executors of the estate; that the said will empowered them to perfect the title and then sell the land and pay the debts and burial expenses of the testator, and divide the surplus among his heirs; that he died on April 15, 1874, and his said will was admitted to probate May 28, 1881; that the plaintiffs are entitled to the immediate possession of said land, and that the defendant unlawfully keeps them out of the possession thereof, and has so kept them out of possession since the 11th day of April, 1881; and they demand judgment against the defendant for the possession of the land and for damages.
The court below sustained the demurrer, and rendered judgment against the plaintiffs for costs of suit. The plaintiffs make their bill of exceptions, and bring their petition in error in this court.
In actions for the recovery of the possession of real property, it is not ordinarily necessary that the plaintiff should state in his petition how his title was derived, but there is nothing in the statute that prevents him from so doing if he so desires. If the statement of his cause of action discloses the fact that he has no legal or equitable title to the land claimed, and does not show some ground for the recovery of the possession other than as the holder of the legal or equitable title, his petition is not sufficient, and may be demurred to. The legal presumption is, that the title and possession, or right of possession of real estate, is in the same person. If then a party plaintiff, by his pleadings or evidence, shows that the legal title is in a third party, the presumption is that such third party is in possession, or is entitled to the possession of it.
The plaintiffs, by their petition, claim to be the owners of the land, and to be entitled to the possession because of such ownership, but have shown that the United States has conveyed the title by patent to the heirs of William Appleton deceased, and that they, and not the plaintiffs, are the owners, and are presumed to be in the possession; and if not, that they are entitled to the possession, and...
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...... . No. proceedings by an administrator can pass title to land which. has not been proved up on. (Sec. 2296, U. S. Rev. Stat.;. Chapman v. Price, 32 Kan. 446, 4 P. 807; Baldwin. v. Boyd, 18 Neb. 444, 25 N.W. 580; Jean v. Dee,. 5 Wash. 580, 32 P. 460; Towner v. Rodegeb, 33 Wash. ......
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