Gray v. Crockett

• Decision Date: 01 January 1883
• Citation: 1 P. 50,30 Kan. 138
• Parties: B. GRAY v. ELIZABETH I. CROCKETT, et al
• Court: Kansas Supreme Court

1 P. 50

30 Kan. 138

B. GRAY v. ELIZABETH I. CROCKETT, et al

Supreme Court of Kansas

January 1, 1883

Error from Wyandotte District Court.

ACTION brought March 3, 1882, by B. Gray against Elizabeth I Crockett, H. C. Long and Martha M. Long, to compel them to convey certain real estate. The terms of the alleged contract set forth in the petition are as follows:

"April 22, 1881. Agreement between H. C. Long and B. Gray for sale of his farm of thirty-three acres, s. side of Tauromee street, Wyandotte, for eight thousand dollars.

"Said Long agrees to sell the said farm for $ 8,000, payable as follows: $ 500 by the 28th of April, inst., $ 1,500 in three months from date, and balance, $ 6,000, in three years, with interest at 8 per cent.

"Gray agrees to make payment as above, and pay Armstrong's commission, not exceeding $ 100.

"Gray to have possession when $ 2,000 is paid, and deed then to be given, and mortgage then given to Long for three years at 8 per cent., with the privilege of paying whole or part sooner."

The answer, among other matters, alleged that the real estate described was, at the execution of the said pretended contract, the homestead of H. C. Long and family, and that Martha M. Long, his wife, did not join in the alleged contract or consent thereto. Trial had at the July Term of the court for 1882. The following admissions of fact were made by the parties:

"That defendant H. C. Long, on the 22d day of April, was the owner of the thirty-three acres of land described in plaintiff's petition.

"It is agreed that, if said land is outside of Wyandotte city, it was a homestead at the time of contract between plaintiff and said defendant H. C. Long, and could not be alienated without the joint consent of husband and wife.

"It is admitted that on the 22d of April, 1881, the land in controversy was occupied by H. C. Long and family as a homestead--that is, that they had a homestead thereon.

"It is admitted that, under the charter incorporating the city of Wyandotte in the year 1859, the land in controversy is within the corporate limits of said city. And it is further admitted that, in the year 1879, the land in controversy was excluded from said city limits by an act of the legislature, approved March 12, 1879. The point in dispute is as to the constitutionality of the law of March 12, 1879. If that law is valid, the land in dispute at the date of sale was outside of the city limits, and occupied as a homestead. If that law is void, the land in controversy is within the city limits and not a homestead.

"It is admitted that, on December 24, 1881, when H. C. Long and Martha M. Long conveyed to Elizabeth Crockett thirty-one acres of the land in controversy, said Mrs. Crockett had notice of the written contract of sale of H. C. Long to plaintiff, B. Gray.

"The execution of contract of sale mentioned in the petition of the plaintiff is admitted.

"It is also admitted by the parties hereto that the lands adjacent to the tract in controversy (on the north and east) had been surveyed and platted into lots, but that the premises in controversy never had been surveyed and platted into lots."

The issues formed were submitted to the court upon the admitted facts and the evidence introduced by the parties, with a request that the court find the facts specifically, and state its conclusions of law thereon. This was done. The facts found are these:

"1. The land described in the plaintiff's petition has been occupied by the defendants, H. C. Long and Martha M. Long (who are husband and wife,) as a homestead ever since the year 1856, and that from the said year 1856 up to the year 1859 said homestead was out of the limits of any incorporated town or city, and was less than one hundred and sixty acres of land, which was used from 1856 to the present time as farming land by said H. C. Long and Martha M. Long, and by them occupied as a residence for themselves and family.

"2. In the year 1859, said farming land was included in the city limits of Wyandotte by a special act of the legislature incorporating said city, approved January 29, 1859. But the defendants still continue to occupy said land and use the same for farming purposes, and still continue to so use the same; that defendants have never had said land laid off or platted into town or city lots.

"3. On the 12th day of March, 1879, the legislature, by a special act of that date, reduced the territorial limits of said city so as to exclude from its limits said land; that said land was outside of the city limits, under the act of 1879, at the time the contract sued upon was entered into between the plaintiff and H. C. Long, and Martha, his wife.

"4. Said contract of April 22, 1881, was not signed or assented to by said Martha M. Long, wife of said H. C. Long.

"5 H. C. Long, on the 22d day of April, 1881, entered into a written agreement with plaintiff for the sale of land first described in the petition, being a tract of about thirty-three acres, to plaintiff for the sum of $ 8,000; $ 500 to be paid April 28, 1881, the balance to be secured by mortgage at three years from date of contract, at 8 per cent. interest.

"6. On the 25th day of said April, defendant H. C. Long agreed to convey the same tract of land of thirty-three acres to one Rogers, for the sum of $ 8,500.

"7. Afterward, on the 25th day of said April, defendants H. C. Long and Martha M. Long entered into a written agreement for the sale of said thirty-three acres to S. M. Ford, of Kansas City, for the sum of $ 8,500.

"8. On the 28th day of said April, the time fixed for the first payment under plaintiff's contract with defendant H. C. Long, plaintiff tendered to defendant H. C. Long the sum of $ 500, that being the first payment under the terms of said contract, which money was refused by said Long, who then and there repudiated said contract. Plaintiff was then and always has been and now is willing, able and anxious to comply with all of the specifications of said contract.

"9. On December 24, 1881, defendants H. C. Long and Martha M., his wife, deeded 31 3/10 acres (the second tract described in the petition) of said land to Elizabeth I. Crockett, for the sum of $ 8,500, reserving and retaining about two acres of said tract, worth $ 1,200; said defendant Crockett having full notice of the contract between plaintiff and defendant H. C. Long at the time of said conveyance to her."

The court upon the foregoing facts concluded:

"1. By the act incorporating said city of Wyandotte in 1859, such homestead was not destroyed, nor the defendants' rights thereto divested.

"2. Said act of March 12, 1879, is a valid and constitutional law, and in full force as such.

"3. The said contract of April 22, 1881, is void and of no effect."

Exceptions were properly taken by the plaintiff to Nos. 1, 2 and 3 of the findings of fact, and to all of the conclusions of law. The plaintiff brings the case here.

Judgment reversed and cause remanded.

B. Gray, plaintiff in error, for himself; N. Cree, for plaintiff in error.

John B. Scroggs, and Hiram Stevens, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The question for our consideration and determination in this case involves the constitutionality of the act of the legislature of this state entitled "An act excluding certain farming property from the corporate limits of Wyandotte city, Kansas," approved March 12, 1879. By the act of the territory of Kansas incorporating the city of Wyandotte, approved January 29, 1859, the land in controversy was embraced within the corporate limits of that city. The special act of March 12, 1879, attempted to exclude this land from the city limits. It is contended on the part of the plaintiff that this act conflicts with various sections of the constitution. Section 17 of article 2, and §§ 1 and 5 of article 12, are specially referred to as antagonistic to the act. The former provides that "in all cases where a general law can be made applicable, no special law shall be enacted." And § 1 of article 12 forbids the legislature to pass "any special act conferring corporate powers;" and it further provides that "corporations may be created under general laws, but all such laws may be amended or repealed." Section 5 of said article reads: "Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power."

At the time of the adoption of the act of March 12, 1879, the general statute relating to the incorporation of cities of the second class--to which class Wyandotte city belongs--then in force, and which took effect March 13, 1872, provided that:

"The city council, in their discretion, may add from the territory adjacent to the city limits, as defined and existing at the date of the approval of this act, such additional territory as they may deem proper, and shall in every case have power to increase or diminish the city limits in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, That in no case shall any adjacent territory, except when subdivided into town lots, be added to the limits of a city without the consent, in writing, of the owners of the majority of the whole number of acres owned by residents of Kansas of the territory proposed to be added."

It is claimed that as there is a general law upon the statute book under which the city limits of Wyandotte could be diminished the special act of March 12, 1879, could not be enacted, because not only could a general law be made applicable, but one was actually existing. ...