Goddard v. Donaha

• Decision Date: 07 December 1889
• Parties: MARY G. GODDARD v. DANIEL DONAHA
• Court: Kansas Supreme Court

22 P. 708

42 Kan. 754

MARY G. GODDARD v. DANIEL DONAHA

Supreme Court of Kansas

December 7, 1889

Error from Marshall District Court.

THE case is stated in the opinion.

Judgment affirmed.

Calderhead & Patterson, for plaintiff in error.

J. A Broughten, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT C.:

William Gilruth, a wealthy farmer, living in Scioto county, Ohio, placed with Jeff. Thompson, at St. Joseph, Missouri, in 1860, five land warrants for him to locate on government lands in Kansas. Shortly after, Thompson went south into the rebel army, and never reported concerning the warrants. Gilruth heard nothing of them, nor of any land upon which they might have been located, until sometime in 1870, or 1871, when he saw in a Marshall county newspaper that five quarter-sections of land, assessed in his name, were advertised in the delinquent tax-lists of that county; he then told his son Archibald that if he would look up all the lands and pay all the taxes and charges that might have been assessed against them, he might have them. Archibald borrowed $ 500 from his brother Thomas, came to Kansas and redeemed part of the land, including the quarter-section in controversy. A few years afterward, he went as missionary to India, where he now is. Before he went he told his sister Mary, now Mrs. Goodard, that if she would pay the debt due Thomas, she might have his interest in the lands; she has since paid that debt in full. No deeds or any memoranda were ever executed, either by Gilruth the father or Archibald the brother, to Mrs. Goddard. In 1879 the old gentleman died intestate. He had requested before his death that his property should be divided, as nearly as possible, into nine equal shares -- one share to each of his children surviving him. His property, both real and personal, except the lands in Kansas and a tract which came to him by his wife, who died long before, was amicably divided and distributed. In 1885 five of his heirs united in a warranty deed of the Kansas lands, without consideration, to Mrs. Goddard, and one Col. Gilruth executed a quitclaim deed for the consideration of $ 300 expressed in the deed, although as a matter of fact no consideration passed. Mrs. Kelly, an older married sister, refused to convey her interest therein unless she should be paid for it. Archibald Gilruth had paid all taxes and charges upon the land up to 1875; since then up to the commencement of this action the taxes were paid by Mrs. Goddard; the land was assessed up to 1886 in the name of William Gilruth.

January 4, 1886, Mrs. Kelly and her husband for a valuable consideration conveyed by quitclaim deed the undivided one-ninth interest to the southeast quarter of section 35, town 5, range 9, Marshall county. The above-mentioned deeds to Mary Goddard were on record at this time in the office of the register of deeds of Marshall county. In June, 1886, Daniel Donaha commenced this action for partition of this land, claiming that he owned an undivided one-ninth interest therein. At the trial, at the August term, 1887, of the Marshall district court, plaintiff introduced his quitclaim deed from Mrs. Kelly and her husband, and rested. The pleadings showed that Mrs. Kelly was one of the heirs of William Gilruth. The defendant demurred to the evidence; the demurrer was overruled, and the defendant then introduced his testimony.

We think the court erred in overruling the demurrer to the evidence, but as the defendant offered testimony subsequently, showing the entire...