Goodman v. Malcolm

• Decision Date: 22 March 1897
• Docket Number: 49
• Citation: 5 Kan.App. 285,48 P. 439
• Parties: HULDA GOODMAN et al. v. HENRY CLYDE MALCOLM et al
• Court: Kansas Court of Appeals

48 P. 439

5 Kan.App. 285

HULDA GOODMAN et al. v. HENRY CLYDE MALCOLM et al

No. 49

Court of Appeals of Kansas, Northern Department, Central Division

March 22, 1897

March 22, 1897.

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

Judgment reversed and case remanded.

Thomas Dever, for plaintiffs in error.

Jas. V Humphrey, for defendant in error, Luan Malcolm. W. H. Laundy for defendant in error, Henry Clyde Malcolm.

OPINION

MAHAN, P. J.

The plaintiffs brought suit in the District Court of Geary County, alleging that their father, Jeremiah Malcolm, on June 22, 1877, conveyed to them and to their sister Jane Malcolm deceased, certain lots of land in Geary County. They set out a copy of the deed and alleged, that their sister Jane died in infancy, without issue and unmarried, and that the father, Jeremiah Malcolm, took the undivided one-fourth interest by descent, upon the decease of the said Jane; that the land so conveyed comprised about 198 acres; that by the terms of the deed the said Jeremiah Malcolm, who at the time of the making thereof was a widower, reserved a life estate in said land to himself; that he afterwards intermarried with the defendant, Luan Malcolm, and after said marriage the plaintiffs and said defendants, Jeremiah and Luan Malcolm, mortgaged said land to the defendant, Provident Loan and Trust Company, to secure the sum of twelve hundred dollars borrowed by the said Jeremiah for his own use; that on the eighteenth day of June, 1892, for the purpose of repaying said loan, the plaintiffs and their father Jeremiah and their stepmother Luan joined in a deed conveying to one Brown, about fifty acres of said land; that the money was used to discharge the indebtedness of the said Jeremiah; that it was agreed between them that the land so conveyed should be the entire interest that Jeremiah inherited from his daughter Jane; that the father remained in possession of the land, receiving the rents and profits under said reservation of a life estate, until the year 1893; that the rents and profits were of the value of two hundred dollars per annum; that about the month of June, 1893, Jeremiah made another deed conveying all of said land in fee to the infant son of Jeremiah and Luan, Henry Clyde Malcolm, and, immediately upon the making of said conveyance, abandoned the land, absconded, and his whereabouts became and were yet unknown to the plaintiffs; that in 1891 the land was sold for the unpaid taxes of 1890, and that the taxes for 1891, 1892 and 1893 were yet unpaid; that a tax deed would become due to the purchaser in September, 1894, after the beginning of this suit; that the amount of the delinquent taxes was $ 163.53; that, since the departure of their father, the defendant Luan Malcolm had been in possession and had received the rents and profits of the land.

The plaintiffs claimed in their petition that, by reason of the permitting of said land to be forfeited for taxes, the making of the conveyance to Henry Clyde Malcolm of a fee simple title, and by reason of his abandonment of said land, the life estate of Jeremiah Malcolm had become forfeited and extinguished; that the plaintiffs were the owners of the entire remaining estate not theretofore conveyed by them jointly, to wit, of about 148 acres; that their estate had become absolute, and that they were entitled to the possession and the rents and profits of the land.

In a second count of the petition they claimed to be the legal and equitable owners of the land as tenants in common, that they were entitled to the immediate possession of the land, and that the defendants, Luan Malcolm and Henry Clyde Malcolm, were wrongfully and unlawfully in possession of the land and unlawfully kept the plaintiffs out of possession. The plaintiffs prayed for possession; and that the Provident Loan and Trust Company might be required to establish and set up such right as it might have in the property; that the deed executed by Jeremiah to the infant, Henry Clyde, might be vacated and set aside so far as it affected the land in controversy; that the life estate of Jeremiah be decreed to be forfeited and extinguished; that the land be partitioned among the parties as their respective interests might appear, and that the defendants might, if found to have no interest therein, be barred from asserting any claim thereto; that a receiver be appointed during the pendency of the action, to take charge of the land, collect the rents and redeem the land from tax sale, and to preserve the estate for the benefit of the parties interested.

Luan Malcolm, answering the petition, denied that the deed set out in the first count of the petition was ever executed or delivered by the said Jeremiah Malcolm. As to the second cause of action, she averred that prior to the twentieth day of June, 1893, she was the wife of the defendant Jeremiah, and had ever since been such wife; she admitted that the taxes had not been paid since the year 1890; that the premises were sold for taxes in the month of September, 1891; and that a tax deed would be due in the month of September, 1894, unless the premises should be redeemed. She said she had been making arrangements to redeem the land and believed that she would be able to procure the funds for such purpose before September, 1894. She alleged that the premises were, prior to the twentieth day of June, 1893, the homestead of herself and the said Jeremiah, and had been so ever since, and that they had been occupied by the family of the said Jeremiah long prior to the twentieth day of June, 1893; that when Jeremiah departed he left her in possession of the premises with direction and authority to keep and manage them for the benefit of herself and family; that she retained possession by virtue of being the wife of the said Jeremiah, and that Jeremiah was the owner in fee simple.

For a third defense she alleged that she was married to Jeremiah on the twenty-second day of June, 1877; that prior to, and at the time of, the marriage Jeremiah promised her, as an inducement to enter into the marriage relation with him, that all of the real estate then owned by him should thereafter be owned and held by her and the said Jeremiah in common; that she married him upon this consideration; that on the said twenty-second day of June, disregarding his promise, he wrongfully and fraudulently made this deed to the plaintiffs, and caused the same to be recorded in the office of the register of deeds of Geary County, where the land was situated; but that he still retained exclusive dominion over the deed, and, before he had had an opportunity to deliver it to the plaintiffs, she learned of the fraud, obtained possession of the deed, and in his presence destroyed and burned it; that the said deed never was delivered to the plaintiffs nor to any one for them; that prior to the making of the deed to Henry Clyde Malcolm, the land was the homestead of herself and her husband and Henry Clyde, and had been ever since; that she did not consent to the execution of said deed; that the said deed was a cloud upon the title of Jeremiah and herself as his wife.

In a third count she admitted that she withheld possession of the premises sued for in the action, but denied that the plaintiffs were entitled to the possession thereof, or to any right or title thereto. She prayed that the deed might be declared to be void; that the said Jeremiah might be declared to be the owner of said premises, and his title quieted against the claims of the plaintiffs; and that she might be decreed to have a homestead in said premises by virtue of being the wife of the said Jeremiah. This answer was verified.

A reply was filed, denying the new matter set out in the answer and alleging that, by reason of the fact that the defendant Luan in her answer had denied the title of the plaintiffs to the land in controversy, she had repudiated the title upon which the life estate of her husband was based; and that she had forfeited, and was estopped from claiming any homestead right in, the life estate of the said Jeremiah Malcolm in the land in controversy. The reply denied that the land had been the homestead of the family, but alleged that the homestead had been upon other lands, describing them, being adjacent lands amounting to eighty acres. The reply further alleged that the plaintiffs were the daughters of Jeremiah by his deceased wife, Mary, who died about the year 1872; that they and their deceased sister were all the children of the said Mary, and that their ages at the time the deed was made were as follows: Emma, seven years; Hulda, eleven years; Jane, seventeen years; Ardellas, twenty years; that at the time the deed was made the three younger sisters were living at home with their father Jeremiah, and that he was their natural guardian; that Jeremiah, in 1876, under the provisions of the Homestead Act of Congress, took lots 1 and 2 in section 18, and that that land had been the homestead of the family; that all of the buildings were upon said Government land; that immediately preceding the marriage of the said Jeremiah and the said defendant, they made and executed an antenuptial contract, in writing, respecting their personal property but not including any real estate, and that this was the only antenuptial contract existing between them.

The plaintiffs further averred in their reply, that all of the facts relied upon by the defendant Luan Malcolm were fully known to her more than sixteen years before, and that if she ever had any cause of action in respect thereto, the same was long since barred by the Statute of Limitations.

Henry Clyde Malcolm, answering by his guardian ad litem first interposed a general denial to the allegations of the plaintiff's...