Love v. Blauw

CourtUnited States State Supreme Court of Kansas
Citation59 P. 1059,61 Kan. 496
PartiesLOVE v. BLAUW.
Decision Date10 February 1900
Syllabus

1. A written instrument examined, and held to be a deed and not testamentary in character.

2. The owner of a life interest in lands cannot maintain an action of partition against the owners of the estate in remainder. A decree in such case, setting over a part of the property to the plaintiff (a life tenant) in fee simple, is wholly void.

Error from court of appeals, Northern department, Eastern division.

Action by Catherine Blauw against Charles T. Swartzeli and others for partition of lands. After the decree, and on the death of Catherine Blauw, Ferdinand C. Blauw procured an order allotting her share of the estate to him. Defendants conveyed the lands to Anna M. Love, who brought error. From a judgment of the court of appeals (57 P. 258) reversing the judgment below, love brings error. Reversed.

Catherine Blauw and her husband, Ferdinand, executed, in due form, a deed to the real estate in controversy in the following terms: “Whereas, Captain Joseph Parks deceased, a Shawnee Indian, as a reservee under the treaty of May 10, 1854, concluded between the United States government and the Shawnee tribe of Indians in Kansas, received in his lifetime a patent from the government of the United States to the land hereinafter described (together with other lands), and said land (with other lands) at the death of said Parks descended to said Catherine Swartzell, and her sister Rebecca Vogel, granddaughter of said Parks; and to one Sally Rogers, a daughter of said Parks; and whereas, said Catherine Swartzell succeeds to all the estate in and to said lands hereinafter described by regular conveyance from the other heirs; and whereas, said Catherine has now living with her three sons by her former husband, John T. Swartzell, deceased, namely, Charles T. Swartzell, John A. Swartzell, and Elmer O. Swartzell, all minors of tender years; and whereas, said Catherine has recently intermarried with one Ferdinand C. Blauw; and whereas, said Catherine Blauw being desirous of making provision for her said named children after her death, her said husband consenting thereto by joining with her in this conveyance: Now, therefore, know all men by these presents that Catherine Blauw (formerly Swartzell) and Ferdinand C. Blauw, her husband, in consideration of the sum of five dollars to them paid, the receipt of which is hereby acknowledged, and for the love and affection the said Catherine bears to her said named children, doth hereby grant, bargain, sell, and convey unto the said Charles T. Swartzell, John A. Swartzell, and Elmer O. Swartzell, and to their heirs and assigns, the following described real estate, situate in Johnson county and state of Kansas, to wit: [Then follows a description of the land.] The estate in said lands and tenements not to vest in said named grantees and their heirs until the death of said Catherine Blauw, she reserving in herself a life estate therein. To have and to hold unto the said named grantees and their heirs from and after the death of the said Catherine Blauw, and their heirs and assigns, forever. In witness whereof the said named Catherine Blauw and Ferdinand C. Blauw have hereunto subscribed their hands and seals this 4th day of February, A. D. 1882. Catherine Blauw. [Seal.] Ferdinand C. Blauw. [Seal.] In September, 1884, Catherine Blauw filed a petition in the district court against said minors, Charles T., John A., and Elmer O. Swartzell, as defendants. The petition recites the said conveyance of the land by herself and husband to the minor children, and the record of the same, and avers that each of said minors are the owners of an undivided one–third interest in the land so conveyed, subject to a life estate in the plaintiff. It prays that the court determine the value of her life estate, and that partition be made of said lands, and so much thereof as should be found to be the value of the life estate of plaintiff be set apart to her. On the final hearing of the cause, the court found that said minors were vested with a fee–simple title to the land; and that Catherine Blauw was vested with a life estate therein; that she was at the time 43 years old; and that she desired to have the value of the life estate determined, and elects to have the same set out to her. Appraisers were then appointed by the court to value and divide the property upon actual view, and report to the court. They reported as follows: “And now at this day comes J. G. Martin, Philip Reinhart, and George Thomas, commissioners appointed by the court to make partition of the lands described in the order of the court, and hereinafter described, and to divide the land between the parties in the proportion of seven thousand seven hundred and eighty–eight and 41 / 100 ($7, 788 41 / 100 ) dollars, the value of the plaintiff’s life estate therein, and five thousand nine hundred and twelve and 24 / 100 ($5,912 24 / 100 ) dollars, the interest of said defendants in said lands, and to set out to them their respective shares out of the lands as heretofore appraised, at the appraised value thereof, and herewith submit their report, as follows: We set out to Catherine Blauw the following tracts, namely: The S. ½ of the N. ½ of the N. E. ¼ of the N. E. ¼ of section three (3), ten acres, appraised at sixteen hundred and twenty dollars ($1,620); the S. ½ of the N. E. ¼ of the N. E. ¼ of section three (3), 20 acres, appraised at thirty–four hundred dollars ($3,400.00); the S. ½ of the S. W. ¼ of the N. W. ¼ of section two, 19 9 / 100 acres, appraised at thirteen hundred and thirty–six 25 / 100 dollars ($1,336.25); and the E. ½ of the N. W. ¼ of S. W. ¼ section two (2), 19 9 / 100 acres appraised fourteen hundred thirty–one 41 / 100 ($1,431.40), —$7,787.65. And we set apart to Charles T. Swartzell, John A. Swartzell, and Elmer O. Swartzell, to be held by them in common, as ordered by the court, the following lands, to wit: The N ½ of the S. E. ¼ of the N. E. ¼ of section three (3), 20 acres, appraised at the sum of nineteen hundred dollars ($1,900.00); and the S. ½ of the S. E. ¼ of the N. E. ¼ of section three (3), 20 acres, appraised at the sum of twenty–two hundred dollars ($2,200.00); and the N. ½ of the S. W. ¼ of the N. W. ¼ of section two (2), appraised at eighteen hundred and thirteen dollars ($1,813),—$5,913.00.” The court made the following finding: “And the court finds that the said defendants, Charles T. Swartzell, John A. Swartzell, and Elmer O. Swartzell, are each entitled and vested to an equal undivided one–third part of said lands held in common, subject to a life estate in said lands vested in the plaintiff, Catherine Blauw; and the court finds that the said Catherine Blauw will be forty–four years old at her next...

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