Hammerslough v. Hackett

• Decision Date: 01 January 1883
• Citation: 30 Kan. 57,1 P. 41
• Parties: LOUIS HAMMERSLOUGH v. MARGARET HACKETT
• Court: Kansas Supreme Court

1 P. 41

30 Kan. 57

LOUIS HAMMERSLOUGH v. MARGARET HACKETT

Supreme Court of Kansas

January 1, 1883

Error from Wyandotte District Court.

ACTION by Margaret Hackett against Louis Hammerslough, begun on the 13th day of February, 1882. The petition in this case states that on January 11, 1879, the defendant Louis Hammerslough and his wife Rachel conveyed to the plaintiff Margaret Hackett two hundred and eighty acres of land situate in Coffey county, in this state; that by the terms of the deed the defendant covenanted to and with the plaintiff that he and his wife were lawfully seized of an indefeasible estate in fee simple in the real estate, and that they had good right to convey the same, when in truth and in fact neither of them was seized of any estate therein, nor of any part thereof; that neither of them had the right to convey the premises, nor any part thereof; that upon the execution and delivery of the deed, the said covenants and each of them were broken, and that the said plaintiff took nothing by virtue of the deed. Defendant filed an answer admitting the execution of the deed, alleging it was made without any consideration whatever, and denying each and every allegation in the petition. For a further defense the answer alleges:

"That on the 11th day of January, 1879, he was in possession of the land described in the petition, under color of title thereto and claiming to own the same in fee simple; that on said date he made the deed described in said petition, and covenanted by said deed in manner following, that is to say:

"The said Louis Hammerslough, and Rachel Hammerslough his wife hereby covenanting that they are lawfully seized of an indefeasible estate in fee, in the premises herein conveyed that they have good right to convey the same; that said premises are free and clear of any incumbrances done or suffered by them or those under whom they claim, and that Louis Hammerslough will warrant and defend the title to the said premises unto the said party of the second part [plaintiff herein] and unto her heirs and assigns forever against the lawful claims and demands of all persons whomsoever; that the said covenants hereinbefore stated were all made by him in the terms and words aforesaid, and constitute all the covenants in said deed contained; that at the execution of said deed he delivered possession of said land to the plaintiff; that plaintiff, by a conveyance made and executed by her, has disposed of all said lands, and of all of her interest and estate therein, and has assigned and conveyed for a valuable consideration, and the same is now vested in Gardner Lathrop and William M. Smith who claim title thereto under a conveyance thereof regularly made and executed by plaintiff; that said Lathrop and Smith have been put in possession of said land under their title derived from plaintiff, and are still in possession thereof; wherefore, defendant says that plaintiff has suffered no damage by reason of the alleged breach of the covenants set forth in her petition, and ought not to have or maintain her action herein."

And for other defense the answer sets forth:

"That since the making of said deed, defendant has procured to be conveyed to himself all and every outstanding and conflicting claim of every nature existing or pretended to exist against the title of said lands conveyed by him by the deed aforesaid, all and every of which claims have been by the operation of said deed annexed to and are now vested in the plaintiff and her assigns."

The reply alleges:

"That the said defendant Louis Hammerslough was not on the 11th day of January, 1879, nor was he at any time before or since said time, in possession of the said lands described in plaintiff's petition; that she has not conveyed said lands or any part thereof to Gardner Lathrop and William M. Smith, nor either of them; that Gardner Lathrop and William M. Smith, nor either of them, have been put into possession of said land, or any part thereof, under any title derived from said plaintiff; said Lathrop and Smith are not now, nor are either of them, in possession of said lands, nor any part thereof.

"Second. To the defendant's third ground of defense, this plaintiff says that said defendant has not procured to be conveyed to himself all and every outstanding and conflicting claim of every nature existing or pretended to exist against the title to said lands described in said petition; that no title has been annexed to or vested in the plaintiff, or any of her assigns, by operation of said deed aforesaid.

"Third. The plaintiff, further replying, says: That to cover any supposed conveyances that may hereafter be or now are vested in or made to the supposed defendant, and to bar any future claims, she, her heirs or assigns, may have to any right, title or interest in said lands, or under or by virtue of any covenants in said deed in plaintiff's petition mentioned, said plaintiff hereby tenders and files herewith her deed of release and quitclaim to any and all title and interest in or to said lands."

With the foregoing reply, plaintiff filed a quitclaim deed. The judge of the district court having been of counsel in some of the proceedings relating to the cause, by consent of parties, H. L. Alden, Esq., was agreed upon to act as judge pro tem. therein. Trial by the court, at the July Term, 1882, a jury being waived. A general finding was entered by the court for the plaintiff, and judgment rendered in her favor for the sum of $ 1,748.70 and costs. The defendant Hammerslough excepted, and brings the case here.

Judgment reversed and cause remanded.

Hiram Stevens, Karnes & Ess, and J. D. S. Cook, for plaintiff in error.

G. H. English, and J. B. Scroggs, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

A preliminary question is presented in this case upon the motion made by defendant in error (plaintiff below) to dismiss. The facts are, the judgment was rendered and entered August 1, 1882, and the plaintiff in error (defendant below) was given sixty days to make and serve a case-made. The case-made was served on the 26th day of September, 1882, that day being within the time allowed by the court for that purpose. Within three days thereafter the plaintiff below suggested amendments thereto in writing; on the 5th day of October, 1882, the parties by their attorneys appeared before the judge pro tem. to settle the case. The amendments suggested were agreed upon and incorporated in the case-made. Thereupon the defendant below asked the judge pro tem. to settle and sign the case-made as amended, and plaintiff below asked the judge to strike out the words, "This was all the evidence offered on either side." The court examined the papers and exhibits, and then directed additional matters of evidence, which had been omitted therefrom, to be added to the case, and overruled the motion to strike out the words complained of. On the 17th day of October, 1882, the parties again appeared before the judge by their attorneys, and the case was settled and signed, and then attested by the clerk, with the seal of the court attached.

It has already been decided that the judge of a district court, in settling a case-made for this court, has the power, on his own motion, or at the suggestion of either party...