Ingham v. Burnell

• Decision Date: 07 February 1884
• Parties: THOMAS J. INGHAM v. FIDELLA BURNELL, et al
• Court: Kansas Supreme Court

2 P. 804

31 Kan. 333

THOMAS J. INGHAM v. FIDELLA BURNELL, et al

Supreme Court of Kansas

February 7, 1884

Error from Clay District Court.

EJECTMENT brought by Ingham against Fidella Burnell and three others. Trial by the court at the September Term, 1883, and judgment for defendants. The opinion contains a statement of the facts.

Judgment affirmed.

Anthony & Kellogg, for plaintiff in error.

Harkness & Godard, and J. S. Walker, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

Plaintiff brought an action of ejectment against defendants. The case was tried by the court without a jury. The findings of facts are as follows:

"In 1874, O'Brien, being the owner in fee simple of the west half of the northwest quarter and lot one of the southwest quarter, all of section seventeen, town nine, range four east, all in Clay county, Kansas, and being in possession thereof, conveyed the same by warranty deed to one H. R. Dunham. On the 5th of September, 1877, said H. R. Dunham died intestate. At the time of the conveyance to him by O'Brien, he took possession of the land, and so continued in possession until his death. The defendant Fidella Burnell, then Fidella Dunham, was the wife of H. R. Dunham, and was left a widow at his death. The defendants John Dunham and E. M. Dunham are children of the said H. R. Dunham. After the death of H. R. Dunham, his widow, Fidella, married defendant S. P. Burnell. She, with her present husband, is still in possession of the premises in question.

"At the time of the conveyance to H. R. Dunham by O'Brien, one-third of the purchase-money was paid by said H. R. Dunham, one-third by the plaintiff, Thomas J. Ingham, and the other one-third by one E. M. Dunham, a brother of H. R. Dunham, but who is not a party to this suit; and by agreement, and without any fraudulent intent, the said H. R. Dunham was to hold an undivided one-third of said lands in trust for said plaintiff, and another undivided one-third in trust for said E. M. Dunham, a brother of said H. R. Dunham.

"On the 2d of July, 1877, the said H. R. Dunham being in failing health and not expecting to live, an arrangement was made between said H. R. Dunham, his said brother E. M. Dunham, and plaintiff, by which H. R. Dunham and his wife were to convey said land by a warranty deed to plaintiff, which deed was duly made, executed and delivered on said 2d of July, 1877, it being then understood, as at the time of the conveyance by O'Brien to H. R. Dunham, that the real interest of said plaintiff was an undivided one-third, and that the two Dunhams, H. R. and his brother E. M., still each retained also an undivided one-third interest, and the agreement was that plaintiff was to hold the land in trust, one-third for H. R. Dunham and one-third for E. M. Dunham.

"The parties also verbally agreed at this time, July 2, 1877, that plaintiff should take and maintain full control and possession of said land, to use, or lease, or sell the same as he should deem best for the interest of the parties, and keep an account of all expenses, taxes and charges, and sell said land when he should deem it to the mutual advantage of the parties, and after the same was sold he was to account for the clear proceeds of the sale as follows: one-third to himself, one-third to E. M. Dunham, brother to H. R. Dunham, and one-third to H. R. Dunham or his heirs. This verbal agreement was never reduced to writing.

"Plaintiff has never consented to the possession of defendants, or any of them, since the date of the deed of July 2, 1877."

As conclusions of law from the foregoing facts, the court...