Flanigan v. Waters

• Decision Date: 06 June 1896
• Docket Number: 8478
• Citation: 57 Kan. 18,45 P. 56
• Parties: MARY M. FLANIGAN et al. v. JOSEPH WATERS
• Court: Kansas Supreme Court

45 P. 56

57 Kan. 18

MARY M. FLANIGAN et al. v. JOSEPH WATERS

No. 8478

Supreme Court of Kansas

June 6, 1896

Decided January, 1896.

Error from Geary District Court Hon. James Humphrey, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

JOHNSTON J. MARTIN, C. J., and ALLEN, J., concurring. JOHNSTON, J dissenting.

OPINION

JOHNSTON, J.:

This was an action by the heirs of Moses Waters, deceased, to recover from Joseph Waters the possession of 240 acres of land in Geary county. Joseph Waters has been in the possession of the land since 1884, and claims that he received it as a gift from his brother, Moses Waters, during his lifetime. At the trial the testimony tended to show that in 1883 Moses Waters was post sutler at Fort Riley, and had considerable means, while his brother Joseph, who then resided at Amsterdam, N. Y., had little if any property. He and several of his children had employment at small wages in a carpet factory at Amsterdam. Moses visited his brother's family in New York in 1883, and, learning of their condition, suggested that they remove to Kansas. Afterward, in a letter, he advised his brother that he had purchased a farm for him in Kansas, and urged him to come at once and take possession of it. Another letter of like purport was sent urging them to come right away and take the farm which he had bought for them; that it was the last chance he would give them. These letters were written by Mary, the wife of Moses Waters, who brings this action under the name of Mary M. Flanigan. Within a few weeks Joseph Waters came to Kansas, and shortly afterward he was followed by his family, when they were put in possession of the farm, which they have ever since retained. At the same time Moses Waters purchased and gave to Joseph implements sufficient to run the farm. After taking possession of the land, Joseph Waters made some improvements upon a house that was standing thereon, built two or three miles of wire fence, built a stable, corn-crib, chicken-house, grubbed out and broke up additional land, and planted some trees, but the improvements made were not of great value. On June 26, 1889, Moses Waters died intestate, and left surviving him his widow, Mary M. Waters, and six minor children. Soon afterward, the widow intermarried with one Flanigan, and she brings this action for herself, and as next friend for the children. Upon the testimony the jury found in favor of the defendant, holding in effect that Moses Waters had bought the land for his brother Joseph, and gave it to him; that Joseph entered into possession of it in pursuance of the gift, and had improved it and made it his home. It is earnestly contended that the testimony is insufficient to sustain the finding of the jury. It appears that the land was purchased several weeks before Joseph Waters arrived in Kansas, and the title to the same was placed in Moses Waters, in whose name it remained until the time of his death.

As the gift, if any, was in parol, it should be shown by clear and satisfactory proof. From the testimony, it appears that Moses Waters was abundantly able to make the gift, and further that he was anxious to have Joseph and his family established in a home of their own in Kansas. He proposed to give him a farm if he would remove to Kansas. Before purchasing the land, he said it was his purpose to buy a farm for his brother, and when he was negotiating for one he stated that he was going to give it to his brother, and ever afterward spoke of it as the land he had given to his brother. The evidence is abundant that he induced his brother to leave his place in New York by the offer of this home, that upon coming here he delivered it to him as a gift, and that, in pursuance of the gift, his brother took possession and made improvements. Since that time Joseph Waters has had exclusive possession of the farm, and appears to have exercised full ownership over it. During his lifetime Moses Waters repeatedly asserted that he had given the land to his brother, and only held the deed in his own name because his brother's wife was not content to live in Kansas, and that he feared he might sell it and return to New York. Statements of this character and admissions that he had given the land to his brother were so frequently made and to so many different persons that little doubt can remain as to his purpose. The matter of the gift was talked over with most of his neighbors and friends, and evidently he desired all to understand that out of his abundant means he gave his brother and family a home, so that they, too, might enjoy some of the comforts of life. We cannot suppose that the proposition to...