Neve v. Allen

• Decision Date: 05 October 1895
• Parties: JOHN NEVE et al. v. JOHN H. ALLEN
• Court: Kansas Supreme Court

41 P. 966

55 Kan. 638

JOHN NEVE et al. v. JOHN H. ALLEN

Supreme Court of Kansas

October 5, 1895

Error from Mitchell District Court.

ACTION by Allen against Neve and others to quiet title. Judgment for plaintiff. Defendants bring the case to this court. The opinion herein, filed October 5, 1895, contains a sufficient statement of the case.

Judgment affirmed.

L. J Crans, and D. M. Thorp, for plaintiffs in error.

A. H Ellis, and F. T. Burnham, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

I. On March 21, 1887, John H. Allen filed his petition against John Neve and Wealthy A. Neve, alleging that he was and for a long time had been in possession of northeast quarter of southwest quarter, and northwest quarter of southeast quarter of section 27, township 6 south, of range 9 west, except the 13 acres, more or less, included in the town site of West Hampton; that he claimed title in fee to the premises, and that the defendants claimed an estate or interest therein adverse to the plaintiff, but that said claim of the defendants was without any right, title or interest whatever in said premises, or any part thereof, and praying the court to quiet his title to said premises. Service by publication was attempted in the case, but on October 8, 1887, such service was set aside by the court, and thereupon Frank J. Kelley, J. C. McNerney and D. M. Thorp were, on their own motion, made parties defendant, and they were allowed to answer, and the case was continued for service as to John Neve and Wealthy A. Neve. The defendants Kelley, McNerney and Thorp duly filed their separate answers, and afterward Wealthy A. Neve and John Neve filed their joint answer. The answers were of the same general import, to the effect that D. W. Spencer pre-empted said two 40-acre tracts, but died, leaving a son, Milton Spencer, and two married daughters, namely, Maria L. Huntington and Wealthy A. Neve, surviving him as his only heirs; that on May 20, 1874, a patent was issued, vesting the title in said three heirs; that by divers conveyances the undivided interests of Milton Spencer and Maria L. Huntington were vested in the plaintiff, John H. Allen, in fee, and that afterward the undivided interest of said Wealthy A. Neve was vested in the defendants, Frank J. Kelley, J. C. McNerney, and D. M. Thorp, by deed from said Wealthy A. Neve and her husband; that the plaintiff was, and ever since February, 1880, had been, in the possession of the whole tract, except 13 acres, more or less, included in the town site of West Hampton, and during the same time received the rents, issues and profits thereof, amounting to $ 3,000, and had wholly and wrongfully deprived the defendants of their part and portion thereof, and for a long time prior to the commencement of the action, and by the bringing of the same, denied the defendants' right to any portion of or interest in said premises, and praying for a partition of their one-third interest, and an accounting for the rents and profits.

The plaintiff's replies to said answers were to the effect that on April 21, 1875, Milton Spencer, Maria L. Huntington and Wealthy A. Neve were the owners of said land as heirs of D. W. Spencer, deceased; that on said date said Milton Spencer and wife, and the said Wealthy A. Neve and husband sold their several interests in said land to Catherine A. Arthur, and the said Milton Spencer and wife then executed and delivered to said Catherine A. Arthur a deed of general warranty, it being then understood, intended, and believed, between said Catherine A. Arthur, Milton Spencer and wife, and Wealthy A. Neve and husband, that the deed operated as a conveyance of the interest of Wealthy A. Neve and husband to the same extent as the estate of the said Milton Spencer, for the reason that the patent granted the title to the heirs of D. W. Spencer, deceased, and recited that Milton Spencer had made proof and payment for said heirs; and all believed that said patent constituted said Milton Spencer the trustee of said heirs, with full power to convey the interests of all, and they were so advised by counsel prior to the execution of said deed; and that said sale was the free and voluntary act of said Wealthy A. Neve and husband, who then and there received full value for the same, and they then and there considered that by said deed they sold and conveyed their interest in said land to Catherine A. Arthur; that immediately thereafter said Wealthy A. Neve and husband removed from said land to a distant part of this state, and thence to Colorado, where they have ever since remained, never asserting any right or claim to said land until May, 1887, and never exercising any control of the same; that said Catherine A. Arthur paid to said Wealthy A. Neve $ 500 in money as the purchase-price of her interest, and said Catherine A. Arthur was put in possession of said land by said Milton Spencer and said Wealthy A. Neve, and said Catherine A. Arthur and those holding under her have ever since been in the exclusive, peaceable, open, notorious, undisputed and continuous possession of said premises, and have expended much money and made great, valuable and lasting improvements thereon; that on February 11, 1880, said Catherine A. Arthur and her husband, James Arthur, conveyed said land to the plaintiff by deed of general warranty, duly acknowledged and recorded, whereby the plaintiff claimed to be the owner thereof in fee simple; that said land at the time of...