Davis v. Jenkins

• Citation: 46 Kan. 19,26 P. 459
• Parties: DAVIS v. JENKINS.
• Decision Date: 11 April 1891
• Court: Kansas Supreme Court

26 P. 459

46 Kan. 19

DAVIS v. JENKINS.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. Where a party who claims to possess a right to a timber-culture claim under the laws of the United States, and to own and control the relinquishment of the same fraudulently misrepresents the location and quality of the land to one who, relying upon his representations, purchases and pays for his relinquishment and right, such purchaser is entitled to recover the damages actually sustained; and the fact that the purchaser, in making his entry, filed an affidavit in the United States land-office that the land was prairie, and devoid of timber, will not defeat his recovery.

2. In the action to recover damages for the fraud practiced by the seller upon the purchaser, the non-taxable character of land so entered is a proper consideration for the jury in determining the value of such a claim and right of entry.

3. An attachment may be allowed in a civil action for the recovery of money after the return of a verdict, and before the final judgment thereon is rendered and recorded.

Error from district court, Finney county; J. ABBOTT, Judge.

Enoch E. Jenkins recovered a judgment against Frank Davis of $900 in the district court of Finney county. In his petition he alleged that the “plaintiff, on or about the 8th day of October, 1886, bargained with the said defendant to buy of him a relinquishment of a certain tree claim and piece or parcel of land of the said defendant, which relinquishment he (said defendant) represented to own and control, and the land included in said claim and relinquishment thereto to be good level, prairie sod, and tillable land, and situated in Finney county, Kansas, 6 miles west of Ivanhoe, and suitable for timber-culture and agricultural purposes, and especially desirable, and would just suit the plaintiff, who then and there expressed a desire to purchase, enter, and cultivate a claim under the U. S. land laws, known as ‘timber culture claim.’ Plaintiff, further complaining of the defendant, says that at the time of said bargaining said defendant well knew that each and all of his representations so made as aforesaid by said defendant were false; that the said plaintiff, then confiding in the truth of said representations, and believing them to be true, and supposing that said defendant actually owned and controlled said relinquishment, and that the land included in said claim so relinquished was good, level, prairie sod, and tillable land and was situated in Finney county, Kansas, 6 miles west of Ivanhoe, and was suitable for agricultural and timber-culture purposes, agreed to pay for said relinquishment and claim the sum of seventy-five (75) dollars, and did then pay said defendant the sum of agreed upon as aforesaid, and did use and exhaust his (said plaintiff’s) rights under the timber-culture laws on said tract of land, defendant representing that he had just filed a relinquishment thereto in the U. S. land-office, so plaintiff could file and enter same as a tree claim, whereas in truth and in fact the said defendant did not own nor control, and had not owned nor controlled, any such relinquishment; that the land represented to be included in the claim conveyed by said defendant, as aforesaid, was unappropriated public domain, and had never been entered under any of the public land laws, and was not good prairie sod, and tillable land, situated in Finney county, Kansas, 6 miles west of Ivanhoe, but was rough, hilly, mountainous sand hills, and untillable piles of pure sand, and was situated ___ miles south of Hartland, in Hamilton county, Kansas, in the country known as the ‘Sand Hills,’ and is unfit for agricultural purposes and for timber-culture purposes, and is wholly worthless; whereby the said plaintiff has sustained damages to the amount of fifteen hundred (1,500) dollars, to-wit: The sum so paid as aforesaid, to-wit, seventy-five (75) dollars; (2) the value of said plaintiff’s rights under the timber-culture laws, to-wit, seven hundred and fifty (750) dollars; and (3) the difference in value between 160 acres of good, level, prairie sod, and tillable land, situated as represented by said defendant, (less the government price,) and 160 acres of rough, hilly, mountainous sand hills, and untillable piles of pure sand, situated as the facts show it, less the government price therefor. Wherefore the said plaintiff pays judgment against said defendant for the said sum of fifteen hundred (1,500) dollars, his damages so as aforesaid sustained, for costs of suit, and for all other and further proper relief.” The defendant admitted in his answer the sale of his interest in the claim, but denied that he represented the same to be good, level, prairie sod, and tillable land, situated in Finney county, six miles west of Ivanhoe, and suitable for timber-culture and...