Curtis v. Board of Educ.

• Decision Date: 08 February 1890
• Parties: PERMELIA CURTIS et al. v. THE BOARD OF EDUCATION OF THE CITY OF TOPEKA
• Court: Kansas Supreme Court

23 P. 98

43 Kan. 138

PERMELIA CURTIS et al. v. THE BOARD OF EDUCATION OF THE CITY OF TOPEKA

Supreme Court of Kansas

February 8, 1890

Error from Shawnee Superior Court.

THE opinion states the nature of the action, and the facts. Judgment for the defendant Board of Education, at the January term, 1887. The plaintiffs Curtis and two others bring the case to this court.

Judgment affirmed.

Case & Curtis, for plaintiffs in error.

Douthitt Jones & Mason, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Permelia Curtis, William H. Curtis and Orrin A. Curtis against the board of education of the city of Topeka, to have a forfeiture declared of the defendant's title, whatever it might be, to lot numbered 91, on Kansas avenue, originally in the town of Eugene, but now in the city of Topeka, on the north side of the Kansas river, and to have the title to such real estate declared to be in the plaintiffs. The case was tried before the court without a jury, and the court made special findings and conclusions of fact and law, and rendered judgment in favor of the defendant and against the plaintiffs for costs of suit; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.

The facts of the case appear to be substantially as follows: On August 31, 1866, and prior thereto, William Curtis owned the property now in controversy, and with his wife, Permelia Curtis, conveyed the same by a certain warranty deed to School District No. 45, of Shawnee county, Kansas, which school district included all the territory of the town of Eugene, and much other territory; which deed, omitting some of the formal parts, and the signatures and acknowledgment, reads as follows:

"This indenture, made this 31st day of August, 1866, between William Curtis and Permelia Curtis his wife, of the county of Shawnee and the State of Kansas, of the first part, and A. Rambo and B. F. Vanhorn as school board of district numbered 45, of the county of Shawnee and state of Kansas, witnesseth: That the said parties of the first part, in consideration of one dollar to them duly paid, have bargained and sold, and by these presents do grant and convey to the said parties of the second part, their successors in office, for the erection of a school-house thereon, and for no other purposes, lot number 91, Kansas avenue, in the town of Eugene, Shawnee county, state of Kansas, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein; and the said parties of the first part do hereby covenant and agree with the said parties of the second part, that at the time of the delivery hereof the said parties of the first part were the lawful owners of the premises above granted, and seized thereof in fee simple absolute, and that they will warrant and defend the above-granted premises in the peaceable possession of the said parties of the second part and their successors forever."

In the execution of this deed a printed blank was used, but the foregoing words in italics were and are in writing. This deed was duly recorded on September 4, 1866. The officers of the school district immediately took the possession of the property conveyed, erected a school-house thereon, and maintained a school therein up to April 11, 1867, when that portion of the school district which was known as the town of Eugene was severed from the remaining portion of the school district, and was annexed to and incorporated within the city of Topeka, which city was then School District No. 23; and immediately afterward the school officers of the city of Topeka took the possession of the property, and continuously held the possession thereof until May 5, 1883, and used it continuously for school purposes up to 1881 or 1882, with the possible exception of the period from 1869 to 1873. In 1867 the school board of the city of Topeka constructed a new school-house on the property, which remained thereon until June 16, 1882, when it was sold and removed. In March, 1873, the aforesaid William Curtis died, leaving the plaintiffs in this action as his sole heirs--the aforesaid Permelia Curtis being his widow. On April 2, 1873, the School District No. 45 sold and conveyed by a quitclaim deed the property in controversy to the present defendant, for the sum of $ 400. On June 16, 1882, the school-house on said property was sold and removed therefrom, as aforesaid. During that year and the next year the defendant offered the property for sale for the purpose of procuring money to build a new school-house elsewhere, and early in 1883 entered into a contract with C. L. Haywood to sell the property to him, but no sale was ever consummated, and the aforesaid contract was finally abandoned by both parties. On May 5, 1883, the plaintiffs took the possession of the property, and have remained in the possession thereof ever since. On March 3, 1884, the defendant took steps to build a new school-house on the property in controversy, and procured plans, specifications, etc., therefor, when on April 4, 1884, this action was commenced, which stopped all further proceedings. Since that time the property has been taxed, and the taxes paid by one of the plaintiffs.

We think, upon the foregoing facts, the members of the board of education of the city of Topeka are properly speaking and in law, the "successors in office" of the members of the school board of School District No. 45 with respect to the property in controversy, and as such successors in office are entitled to all the rights and privileges with respect to such property as the school officers of School District No 45 would have under the same circumstances if the property still remained within the territorial boundaries of School District No. 45; therefore the deed executed by the school officers of School District No. 45 to the board of education of the city of Topeka can have no practical effect or force in this case. It is useless; for what it attempted to effect had already been effected. It was probably equitable for the school board of the...