Madden v. Stegman

• Citation: 127 P. 524,88 Kan. 29
• Decision Date: 09 November 1912
• Docket Number: 17,482
• Parties: E. F. MADDEN, Appellant, v. CHRIST STEGMAN et al., Appellees
• Court: United States State Supreme Court of Kansas

127 P. 524

88 Kan. 29

E. F. MADDEN, Appellant, v. CHRIST STEGMAN et al., Appellees

No. 17,482

Supreme Court of Kansas

November 9, 1912

Decided July, 1912.

Appeal from Ellis district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EJECTMENT--Answer--Different Sources of Title. Where in ejectment a defendant in an answer claims title under a deed from the plaintiff, and the evidence discloses that this deed was given to clear the title upon the payment of a debt to secure which the defendant had executed a deed to the plaintiff, such pleading should not preclude the defendant from recovering upon a title held prior to the giving of such security-deed, where the plaintiff is given full opportunity to meet the claim of such prior title.

2. EJECTMENT--Evidence -- Declarations of Husband Inadmissible against Wife. In ejectment brought against husband and wife by one who has purchased the property at sheriff's sale on an execution against the husband alone where both defendants maintain that the wife was the sole owner, declarations of the husband asserting title in himself are not ordinarily admissible against the wife.

3. EVIDENCE--Stenographer's Transcript. The statute authorizing the stenographer's transcript of the testimony of a witness to be introduced in evidence by any party "under like circumstances and with like effect as the deposition of such witness," permits such use only in actions between persons who were parties to the litigation in which the testimony was given.

W. E. Saum, of Kansas City, Mo., for the appellant.

Joseph G. Waters, and John C. Waters, both of Topeka, for the appellees.

OPINION

MASON, J.:

E. F. Madden brought ejectment against Christ Stegman and Apolona Stegman, husband and wife. He claimed title under a sheriff's deed based upon a sale on execution on a judgment against the husband alone. The defendants filed separate answers, each asserting that the wife owned the property and that the sale and deed were therefore ineffective. The husband also pleaded that he had redeemed the property from the sale by paying the amount of the judgment to the clerk of the court, but as the allegation showed that the payment had been made after the expiration of the period allowed for redemption, no real issue was presented in this connection. A trial was had upon the question whether the land had been subject to sale on an execution against the husband. The jury found for the defendants, both generally and specially, and judgment was rendered accordingly. The plaintiff appeals.

The evidence showed that in 1898 the husband had arranged for the purchase of the land, that the deed as executed by the seller left the name of the grantee blank, and the name of Apolona Stegman was afterwards inserted. The plaintiff insists that the defendants' own testimony showed beyond dispute that while the formal title was taken in the wife the real ownership was in the husband. It is true there were apparent contradictions in this testimony, but as it included explicit statements that the wife furnished the money with which the land was purchased, an issue of fact was presented upon which the jury was required to pass. (Acker v. Norman, 72 Kan. 586, 84 P. 531.) The jury returned a negative answer to the question whether Apolona Stegman had on a former occasion stated or claimed that her husband owned the land, or an interest in it. A transcript of her testimony in a different action showed that she had asserted that the land was occupied by her husband and herself as a homestead, and had spoken of it as having been purchased and paid for by her husband; but she did not deny that the purchase was made with her money and for her benefit, and was not questioned upon this phase of the matter; the controversy seems to have been over a claim of homestead exemption, rather than of title. Whether her former testimony, taken as a whole, was to be regarded as in contradiction of her present claim was a question to be determined by the jury.

In the answer of Apolona Stegman she claimed ownership under a deed executed by the plaintiff, and said nothing about the deed already referred to. The evidence developed that after the original deed had been executed, and Mrs. Stegman's name had been inserted in it as grantee, the Stegmans executed a deed to Madden as...