Custer v. Royse

Decision Date08 March 1919
Docket Number21,689
Citation104 Kan. 339,179 P. 353
PartiesBESSIE CUSTER, Appellant, v. B. R. ROYSE, Appellee
CourtKansas Supreme Court

Decided January, 1919.

Appeal from Haskell district court; GEORGE J. DOWNER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EJECTMENT -- Evidence Should Have Been Submitted to Jury. The evidence to support an action in ejectment examined, and held sufficient to require its submission to a jury, and that an instructed verdict thereon was erroneous.

2. SAME -- Damages -- Question for Jury. The evidence to support a claim for damages incident to an alleged wrongful dispossession considered, and held sufficient against an instructed verdict.

3. SAME--Statement of Counsel--Evidence--Issues Enlarged by Consent of Parties. In an action in ejectment and for incidental damages, where counsel for plaintiff, in his opening statement to the jury, was permitted, without objection, to give an outline of the facts which he proposed to prove touching the defendant's conversion of plaintiff's personal property situated on the premises at and about the time defendant wrongfully dispossessed the plaintiff, and where the trial court, without objection from defendant, permitted evidence at length to be introduced to establish the plaintiff's damages for such conversion although the facts were not pleaded, or were insufficiently pleaded, in the petition to justify such opening statement and to warrant the introduction of such evidence, it is held that the pleadings should be construed as being broad enough to include those elements of damage, or that the issues were thus enlarged by consent of parties.

John W. Davis, of Greensburg, for the appellant.

Carl Van Riper, and Albert Watkins, both of Dodge City, for the appellee; L. A. Madison, and Arthur C. Scates, both of Dodge City, of counsel.

OPINION

DAWSON, J.:

This was an action in ejectment and for damages.

The plaintiff and defendant both held warranty deeds from a common grantor--the plaintiff directly, and the defendant through an intermediate grantee. Plaintiff's deed was of later date than the one through which defendant claimed; but plaintiff claimed to have been in lawful possession when defend ant's grantor obtained his deed from the common grantor, and that all parties concerned had notice of her possession.

The court directed a verdict in favor of defendant; and the main question in this appeal is whether there was sufficient evidence to require the cause to be submitted to a jury's determination.

The evidence disclosed that in October, 1913, G. L. Baker, the patentee and owner of the property (a quarter section of land) made a written lease of it for one year from November 1, 1913, with the privilege of renewal for a like term, to W. A. Custer, agent. The instrument did not disclose the party for whom W. A. Custer was agent, but the evidence, or part of it, tends to show that he was the agent of the plaintiff. The evidence also partly tends to show that plaintiff took and held possession of the land pursuant to this lease, and that she put a man by the name of Kephart on the land to farm it, and that Kephart occupied the premises with his family until he was ejected by the sheriff pursuant to a default judgment by a justice of the peace, in an action for forcible detention wherein this appellee was plaintiff and Kephart and another, not this plaintiff, were defendants. About the time of that ejectment, May 28, 1916, and to satisfy costs in that action, the sheriff seized and sold two or three hundred dollars' worth of plaintiff's grain and feed which she had stored and stacked on this land.

During the year 1915, while plaintiff's alleged lease was in force, on May 1, Baker gave W. A. Custer a three months' option, in writing, to purchase the land at a price of $ 1,800. There was a consideration of one dollar paid for this option. Plaintiff says she paid the dollar. This option bound the owner, G. L. Baker, upon satisfaction of specified terms, to deliver a general warranty deed and an abstract showing good title, and provided "that the deed shall be made to any party . . . as directed" by W. A. Custer. On June 19, while the Custer option still had about forty days to run, plaintiff bought the property from W. A. Custer and the latter notified Baker. Shortly thereafter, on July 5, Baker executed a deed conveying the land to E. O. Luther.

On July 26, Baker and Luther executed a written agreement whereby the latter was to have immediate possession of the land--

"And receive one-fourth (1/4) of the growing crop, but the present tenant is to have the right to enter land to cultivate, harvest and a reasonable time in which to remove his share of the crop."

Other matters of evidence partly tended to show that Luther bought with notice of plaintiff's rights, and that Baker had advised him more or less accurately and more or less fully concerning the same, and that Baker deeded the property to Luther partly by persuasion of the latter that the option he had given was worthless.

"Question: Did you tell him that you had given Custer a contract for the--agreeing to deed that land to him, or to any person whom he might request you to? Answer: I did.

"Question: What did he say when you--before that--did you offer to show Luther the contract? Answer: I did.

"Question: What did he say when you made the offer? Answer: He said it wasn't worth the paper it was written on; he didn't want to see it."

Two days later, July 28, and while the three months' option was still in force--unless it was merged into plaintiff's contract of purchase--Luther conveyed the property to the defendant, B. R. Royse. Royse purchased without any inquiry, and, of course, was in no better situation than Luther.

It seems needless to rehearse the evidence at greater length. Tested by the generous credence which must be accorded to every bit of favorable evidence, and disregarding the evidence to the contrary, and disregarding all seeming inconsistencies in the favorable evidence, if any there be--and this is the invariable rule in determining the correctness of demurrers to evidence and instructed verdicts--it seems to this court that plaintiff established a case for submission to a jury.

In Mentze v. Rice, 102 Kan. 855, 172 P. 516, it was said:

"The rule is that a demurrer to the defendant's evidence should not be sustained unless there is an entire absence of proof tending to show a right to recover. ( Brown v. Cruse, 90 Kan. 306, 133 P. 865.) Such demurrer admits every fact and conclusion which the evidence most favorable to the other party tends to prove. ( Christie v. Barnes, 33 Kan. 317, 6 P. 599.) And it admits, not only the truth of the...

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12 cases
  • Phillips v. Commercial National Bank
    • United States
    • Kansas Supreme Court
    • 10 Octubre 1925
    ... ... satisfies us that it was sufficient to require the submission ... of the case to the jury." (See, also, Custer v ... Royse, 104 Kan. 339, 341, 342, 179 P. 353; Stice v ... Railway Co., 110 Kan. 763, 205 P. 616.) ... 2. Nor ... can it be declared ... ...
  • Meneley, by Myers v. Montgomery
    • United States
    • Kansas Supreme Court
    • 23 Enero 1937
    ... ... on cross-examination. See, also, Hyland v. Railway ... Co., 96 Kan. 432, 151 P. 1107; Wilhite v ... Mason, 102 Kan. 461, 464, 170 P. 814; Custer v ... Royse, 104 Kan. 339, 340, 179 P. 353, and citations ... If ... appellee's evidence, when considered in its most ... favorable ... ...
  • Fritchen v. Jacobs
    • United States
    • Kansas Supreme Court
    • 7 Marzo 1931
    ...informally amended to supply whatever was technically lacking. ( Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432; Custer v. Royse, 104 Kan. 339, 343, 179 P. 353; Illinois Life Ins. Co. v. Young, 118 Kan. 308, 321, 322, 235 P. 104.) In Beachy v. Jones, 108 Kan. 236, 195 P. 184, it was ......
  • Beachy v. Jones
    • United States
    • Kansas Supreme Court
    • 8 Enero 1921
    ... ... amended, or as if the issues had been enlarged by consent of ... parties. (Hartwell v. Manufacturing Co., 78 Kan ... 259, 97 P. 432; Custer v. Royse, 104 Kan. 339, 343, ... 179 P. 353.) ... Since ... it would have been proper for the trial court to have granted ... the ... ...
  • Request a trial to view additional results

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