Meskimen v. Day

• Decision Date: 05 March 1886
• Citation: 35 Kan. 46,10 P. 14
• Parties: OLIVER MESKIMEN, et al., v. MOSES DAY
• Court: Kansas Supreme Court

10 P. 14

35 Kan. 46

OLIVER MESKIMEN, et al., v. MOSES DAY

Supreme Court of Kansas

March 5, 1886

Error from Pottawatomie District Court.

OLIVER MESKIMEN and Mary Meskimen brought their action against Moses Day, and alleged in their petition as follows:

"The said plaintiffs have a legal estate in and are entitled to the possession of the following real estate, situate in the county of Pottawatomie, state of Kansas, and described as follows, to wit: The northeast quarter of the southeast quarter of section thirty-three, in township seven, of range eleven east, containing forty acres of land; and that the defendant unlawfully keeps said plaintiffs out of the possession of the same.

"Wherefore the plaintiffs pray judgment against the defendant for the possession of said premises, and for such other and further relief' as they may be entitled to."

The defendant filed his answer, alleging as follows:

"Now comes the defendant, and for answer to the petition of the plaintiffs says, that the plaintiffs have not and had not at the commencement of the action, any legal or equitable estate in, nor are or were they or either of them entitled to the possession of the following bounded and described part of the real estate described in the petition in manner and form as therein set forth, to wit: Beginning at the northeast corner of the southeast quarter of section thirty-three, in township seven south, of range eleven east, and running thence west ten rods, thence south thirty-two rods, thence west seventy rods, thence south forty-eight rods, thence east eighty rods and thence north eighty rods to the place of beginning containing twenty-six acres of land, more or less, all in Pottawatomie county, state of Kansas; that the defendant is and was the legal and equitable owner in fee simple of all the real estate above described, and in the possession and entitled to the possession thereof, and that he disclaims all right, title and interest in or to the residue of the real estate described in the petition, and did not and does not keep the plaintiffs out of the possession of the same."

Trial at the April. Term, 1884. Judgment for plaintiffs for two acres of the land, and that the defendant is entitled to twenty-four acres. The court ordered that each party pay the costs by him or them made, respectively. The plaintiffs excepted, and bring the case here.

Judgment affirmed.

M. S. Beal, Jno. T. Morton, and Case & Curtis, for plaintiffs in error.

R. S. Hick, and D. V. Sprague, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action in the nature of ejectment, brought by Oliver and Mary Meskimen against Moses Day, to recover forty acres of land. The defendant answered, claiming to be the legal owner of twenty-six of the forty acres, and disclaiming all title to or interest in the residue. Trial by the court, without a jury. The court rendered judgment that the plaintiffs recover two acres of the land in controversy, and decided that the other twenty-four acres belonged to the defendant. Each party was adjudged to pay its own costs. Upon the trial, the plaintiffs proved to the court that a deed, alleged to have been executed by one Wab-se-qua, a Pottawatomie Indian woman, on September 22, 1877, to Mary Meskimen, one of the plaintiffs, and delivered to Oliver Meskimen, the husband of Mary Meskimen, was, after the same had been filed for record in the office of the register of deeds of Pottawatomie county, lost, and that it was not then in the possession or under the control of' either of the plaintiffs, and could not be found, although diligent search had been made therefor. Thereupon, the plaintiffs offered in evidence the record of said deed from the office of the register of deeds of said county. The deed purported to have been acknowledged before one F. W. Kroenke, as notary public, but the certificate of acknowledgment was not authenticated with his official seal, or with any seal. The defendant objected to the record being read in evidence, on account of the omission of the seal. This ruling is complained of. Sec. 5, chapter 71, Comp. Laws of 1879, reads:

"Every notary shall provide a notarial seal, containing his name and place of residence, and he shall authenticate all his official acts, attestations and instruments therewith."

Sec. 15, of chapter 22, Comp. Laws of 1879, reads:

"The certificate of proof or acknowledgment as aforesaid, may be given under seal, or otherwise, according to the mode by which the courts or officers granting the same usually authenticate their official acts."

Chapter 22, Comp. Laws of 1879, regulating the conveyances...