Goodman v. Nichols

• Decision Date: 10 May 1890
• Citation: 23 P. 957,44 Kan. 22
• Parties: JULIA M. GOODMAN v. WILLOUGHBY NICHOLS
• Court: Kansas Supreme Court

23 P. 957

44 Kan. 22

JULIA M. GOODMAN v. WILLOUGHBY NICHOLS

Supreme Court of Kansas

May 10, 1890

Error from Jefferson District Court.

ACTION in the nature of ejectment, brought by Julia M. Goodman against Willoughby Nichols, to recover the northwest quarter of section 27, township 7, range 18, in the county of Jefferson, and also to recover for the rents and profits thereof and the damages for the withholding of the possession of the same from the 1st day of March, 1875, until the commencement of this action. The defendant answered, and admitted that he had been in the possession of the land as alleged, but denied every other averment contained in the petition. For a further answer, the defendant alleged the history of the title to the land, and stated that it was purchased from the United States by Martha M. Cody on August 7, 1857, and that on the same day she borrowed the sum of $ 200 from Jonathan C. Bowles with which to purchase the land and executed to him a promissory note for that sum, drawing interest at the rate of 25 per cent. per annum, and also a mortgage upon the land purchased to secure the payment of the note. The mortgage was filed for record and duly recorded on August 11, 1857. Subsequently Bowles duly sold and transferred the note and mortgage to Marcus D. L. Simpson and thereafter Simpson brought an action in the district court to recover judgment upon the note and to foreclose the mortgage, and on April 28, 1862, judgment was rendered in favor of Simpson and against Martha M. Cody for $ 434.28 debt, and $ 27.82, costs. On June 5, 1862, a special execution was issued for the sale of the mortgaged premises in pursuance of which the land was duly sold to Willoughby Nichols, the defendant, for the sum of $ 281. The money was paid, and at the October term, 1862, the sale was confirmed and on November 16, 1862, the sheriff executed to the defendant a deed for the premises. Upon the delivery of the deed, the defendant took possession of the land, until that time vacant and unimproved, and in the full belief of rightful ownership by virtue of the judicial sale. It is also alleged that the proceedings were prosecuted by Simpson against Martha M. Cody as mortgagor in good faith as a non-resident, and without any knowledge of her decease, if it was in fact true. It is then stated that the land having been subject to taxation and having been sold, the defendant as owner thereof redeemed the same by the payment of $ 60, and has been in the actual possession of the land as owner since April 29, 1863, without any notice of adverse claim until the commencement of this action, and that he had paid taxes assessed thereon to the amount of $ 600, and placed lasting and valuable improvements thereon of more than $ 2,000. It is alleged that if Martha M. Cody was in fact deceased, as asserted by the plaintiff at the commencement of the foreclosure action, no administration upon her estate had ever been had, and that the heirs at law of said Martha M. Cody have resided in the state continuously and in the neighborhood of said land during all such time, and the records of the court and of the tax proceedings have been open to their inspection, and they have in fact known thereof as well as that the defendant was in the possession and claimed the ownership of the land; but they made no objection thereto in any way, prior to the commencement of this action. Defendant further alleged that if the deed should prove invalid by reason of the prior decease of Martha M. Cody, he was entitled to protection at the hands of the court for the full amount and value of the note, with interest thereon, and also the sum paid for the redemption of such land from tax sale, with interest thereon, before the plaintiff should be permitted to disturb him in his possession. The defendant further alleged that by reason of the facts plaintiff should be estopped from setting up any claim to the land, and further, that the defendant is the equitable assignee of Simpson of the note and mortgage and all interest of Simpson and Bowles therein, with the right to enforce the same against the land if it should be held that the plaintiff has the interest of said Martha M. Cody therein. But the defendant denied the claims of the plaintiff, and averred that he has been lawfully in the possession of the land as the holder and owner thereof under the judicial proceedings stated, and is entitled to have his title quieted as against the claim of the plaintiff. The defendant also pleaded that the action of the plaintiff is barred by the statutes of limitation. The defendant first prayed for general judgment against the plaintiff for costs; and further, that if it should be found that plaintiff held by purchase or otherwise the right of Martha M. Cody based upon the fact of her decease before the mortgage was foreclosed, that the amount of the lien thereon by virtue of the note and mortgage should be determined, together with the costs of redemption of the land from tax sale and the subsequent taxes paid thereon, and also the value of the improvements thereon, and that the court require the plaintiff to redeem the land from these claims within a fixed time or order the land sold for the satisfaction of these liens; and that upon failure of the plaintiff to comply with the decree that she and her heirs and assigns should be barred from all interest or claim upon said land.

The plaintiff admitted the allegations of the answer with respect to the mortgage and judicial sale, but alleged that they were wholly null and void by reason of the fact that Martha M. Cody was not alive when such proceedings were had, averring that she died on or about November 1, 1858.

At the May term, 1887, the case was tried by the court, a jury being waived, and after the testimony was submitted the court made and stated the following conclusions of fact and law:

CONCLUSIONS OF FACT.

"1. The land in dispute was Delaware trust land, and sold under provisions of treaty therefor at Osawkie, K. T., August 7 1857, to Martha M. Cody for the sum of $ 240, and due certificate issued thereon by Daniel Woodson, receiver of the United States land office for that district.

"2. After such purchase, and on said day, said Martha M. Cody, for the consideration of $ 200, borrowed of Jonathan C. Bowles, executed to said Bowles, his heirs and assigns, a mortgage of said premises to secure her promissory note of that day, for the said sum, payable two years after date, at twenty-five per cent. interest from date, and which mortgage was duly acknowledged and certified and filed for record in the office of the register of deeds for said Jefferson county, Kansas, on August 11, 1857.

"3. Said Martha M. Cody intermarried with John E. Craine in the winter of 1857-1858; and they lived together as husband and wife until the fall of 1858, when said Martha M. Cody died intestate, and resident in Johnson county, Kansas, and was buried by said John E. Craine as her said husband; but said John E. Craine had previously intermarried in the state of Pennsylvania with one Julia Stanley, who was then living -- his lawful wife; and no administration was ever had upon the estate of Martha M. Cody.

"4. Said John E. Craine, as the surviving husband of said Martha M. Cody, on April 27, 1858, executed and delivered to Mordecai H. Haines a warranty deed of conveyance, for the consideration of $ 620, for the said described land, which was duly acknowledged and recorded on said date.

"5. Prior to September 24, 1861, said Jonathan C. Bowles duly sold and assigned the said note and mortgage to one M. D. L. Simpson, who on said date commenced suit in this court for judgment and foreclosure thereon, against said Martha M. Cody, as defendant, and on September 24, 1861, summons was issued thereon, and returned not served; thereupon, upon affidavit for publication, publication notice was made, and at the April term of this court, 1862, and on, to wit, April 28, upon default, judgment was rendered in this court in favor of said plaintiff against said defendant for the sum of $ 434.28, debt, and $ 27.32, costs of suit, and decree of foreclosure of sale of said mortgaged premises; upon order of sale thereon, issued June 5, 1862, and appraisement and notice, the sheriff of this county made sale thereof on August 6, 1862, to the defendant, for the sum of $ 281, which sale was returned into this court, and upon proceedings therein had, did thereon order deed at the October term, 1862, on the, to wit, October 27; and thereon, on November 18, 1862, sheriff's deed was executed and delivered to the defendant, which was filed for record on November 19, 1862. And all said proceedings were regular and sufficient, but for the prior death of Martha M. Cody, to have vested full title in the defendant, his heirs and assigns.

"6. On said November 19, 1862, upon filing said sheriff's deed, the defendant redeemed said land from sale for taxes for 1861 and 1862, charged up thereon, amounting to the sum of $ 18.94, said land having been duly assessed and sold for such taxes and previously unredeemed therefrom, and then so redeemed by the defendant as the owner thereof by virtue of such sheriff's deed. All of the proceedings in court and on the part of the defendant were in good faith, without the knowledge of the death of said Martha M. Cody.

"7. At the time of filing said deed for record, said land was vacant, being probably 130 acres prairie and the balance of timber growth. The defendant forthwith on obtaining his said deed made claim of ownership thereunder to said premises, and during the next season put up hay thereon, and protected the timber from trespassers and other land from adverse uses; and it was generally known in that neighborhood that the...