Clendening v. Wyatt

• Decision Date: 01 January 1895
• Citation: Clendening v. Wyatt, 54 Kan. 523, 38 P. 792 (Kan. 1895)
• Parties: JOHN CLENDENING v. ANNA E. WYATT et al
• Court: Kansas Supreme Court

38 P. 792

54 Kan. 523

JOHN CLENDENING v. ANNA E. WYATT et al

Supreme Court of Kansas

January 1, 1895

Error from Bourbon District Court.

ACTION by Anna E. Wyatt and Augustus Wyatt against John Clendening and several other heirs of Joanna Clendening, deceased, to determine the interests of the several parties in a tract of land, and for a partition of the same. It was alleged that the elder John Clendening and Joanna, his wife, were in possession of a tract of Indian land, which is the land in question, and that he was also the owner of considerable personal property situate thereon; that he died in 1867, and left Joanna surviving him, who agreed with the children of the deceased that the personal property was to be taken by the widow and sold, and the proceeds used in obtaining a title from the United States for the land in question, and that it should then belong to her, and at her death be a part of her estate. She continued to live upon the land until the time of her death, in 1887, but did not obtain a patent therefor until 1877. It is averred that on May 5, 1875, John Clendening, for a valuable consideration paid by Augustus Wyatt, sold his entire interest in his mother's estate to Augustus Wyatt, by a written contract of that date, in which his wife, Kate Clendening, joined. A copy of the alleged contract is as follows:

"Know all men by these presents, that John Clendening and Kate, his wife, of the county of Bourbon, state of Kansas, for and in consideration of the sum of $ 2,500, to them in hand paid by Augustus Wyatt, of the county and state aforesaid, do release, remise, and forever quitclaim, unto the said Augustus Wyatt, his heirs and assigns, all that parcel of land situate in the county of Bourbon and state of Kansas and described as follows, to wit, the southwest quarter of section 35, of township 23, of range 25 east, containing 160 acres; also the said John Clendening and Kate his wife, do hereby (in consideration as above) release, remise and forever quitclaim to his undivided portion that he may be entitled to of his mother's estate, to the said Augustus Wyatt, his heirs and assigns. In witness whereof, the said John Clendening and Kate, his wife, have hereunto set their hands and seals, this 5th day of May, 1875.

JOHN CLENDENING. [SEAL.]

KATE CLENDENING. [SEAL.]"

Answers were filed by the several heirs, the answer of John Clendening being an admission of the execution of the contract, but alleging that it was inoperative as a conveyance of an after-acquired title, and further, that a right of action thereon was long since barred by the statute of limitations. Upon the trial, the court sustained the contract, and adjudged that Augustus Wyatt was entitled to the one-seventh undivided part of the real estate in question, and that John Clendening had no interest therein. Of this ruling John Clendening complains.

Judgment affirmed.

John H Crider, for plaintiff in error.

W. R. Biddle, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The questions in this case are, whether an expectancy of an heir to his ancestor's estate may be assigned, and, if so whether the contract above set forth is effectual for that purpose. It is the general rule that an assignment at law will not be sustained unless the subject-matter has an actual or potential existence when the assignment is made, but it appears to be well settled that an expectancy of an heir in an ancestor's estate may become the subject of contract,...