Newkirk v. Marshall

• Decision Date: 09 April 1886
• Citation: 10 P. 571,35 Kan. 77
• Parties: MARY A. NEWKIRK v. JOHN W. MARSHALL, et al
• Court: Kansas Supreme Court

10 P. 571

35 Kan. 77

MARY A. NEWKIRK v. JOHN W. MARSHALL, et al

Supreme Court of Kansas

April 9, 1886

Error from Chase District Court.

EJECTMENT brought by Newkirk against Marshall and wife. Trial at the July Term, 1884, and judgment for defendants. The plaintiff brings the case to this court. The opinion states the fact.

Judgment affirmed.

Madden Brothers, and F. P. Cochran, for plaintiff in error.

Kelogg & Sedgwick, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought by Mary A Newkirk against John W. Marshall and Mary E. Marshall, in the district court of Chase county, for the recovery of certain laud situated in that county. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the defendants and against the plaintiff, and also made special findings of fact; and upon this general verdict and these special findings, the court below rendered judgment in favor of the defendants and against the plaintiff. The plaintiff brings the case to this court for review.

The facts of the case appear to be substantially as follows: In the year 1861 the northwest quarter of section 8 in township 22, of range 8 east, in Chase county, was government land. Sometime during that year Augustus M. Landsbury, with his wife Mary A. Landsbury, and his daughter Mary E. Landsbury, who was then a girl of about 9 or 10 years of age, settled upon and occupied this quarter-section of land as their homestead. Landsbury also made an entry for the land under the homestead laws of the United States, but just when he made it, is not shown. On November 27, 1866, Landsbury executed a will, giving to his wife, Mary A. Landsbury, all his personal property and the east half of said land, and to his daughter, Mary E. Landsbury, the other half of the land, and appointed his wife executrix of his last will and testament, and guardian for his said minor daughter. Soon afterward, and sometime in the year 1866, Landsbury died. On January 7, 1867, Mrs. Landsbury caused the will to be probated in the probate court of Chase county, and she was also appointed executrix under the will; and there was also evidence tending to show that she was appointed guardian for her step-daughter, the said Mary E. Landsbury. At the July term of the probate court of Chase county, Mrs. Landsbury made a report, showing that she had paid the debts of the estate and had a balance remaining in her hands belonging to the estate of $ 718, and further showing as follows: "Said balance is in the hands of said Mary Ann Landsbury, as the lawful owner by law of said property, except the one-half of homestead she now lives on, which belongs to Mary Eliza Landsbury the daughter of deceased." Some time after Landsbury's death, but just when is not shown, Mrs. Landsbury, as his widow, made final proof, under the United States homestead laws, of the settlement and occupancy of the aforesaid land, and also of Landsbury's death, and that she was his widow. Mary E. Landsbury continued to reside with Mrs. Landsbury on the east half of said land, and during all that time it was understood and agreed between them that Mary E. Landsbury owned the west half thereof, and that Mrs. Landsbury should at some time execute a deed to her for the same. Sometime in the year 1869, or 1870, Mary E. Landsbury was married to William Wagoner. On May 2, 1870, the patent for the entire quarter-section was issued by the United States, conveying the title to Mrs. Landsbury. At that time all the improvements were on the east half thereof. Some time after the marriage of Mary E. Landsbury to William Wagoner, they, in accordance with the understanding and agreement of all the parties that the west half of said quarter-section belonged to Mrs. Wagoner, and under the promise of Mrs. Landsbury that she would execute a deed therefor to Mrs. Wagoner, Mrs. Wagoner and her husband took possession of the land, made permanent improvements thereon, and occupied the same as their residence and homestead for about two years, when Wagoner died. The improvements made on the land by them during their occupancy were worth about $ 75. Soon after Wagoner's death Mrs. Wagoner removed to the state of Kentucky, and resided there for about ten years. During all the time that Mrs. Wagoner remained in Kentucky Mrs. Landsbury had charge of this land as well as of the east half of the quarter-section, leasing the same, receiving the rents and profits thereof, and paying the taxes thereon, and, for a part of the time, occupying the same herself, but all the time recognizing Mrs. Wagoner as the owner thereof--that is, as the owner of the west half of the quarter-section. Also, while Mrs. Wagoner was in Kentucky, both she and Mrs. Landsbury were married. Mrs. Waggoner was married to John W. Marshall, and Mrs. Landsbury to a man by the name of Newkirk. In February, 1881, Mrs. Marshall returned from Kentucky to Kansas, her husband, John W. Marshall, having preceded her some three or four weeks. For some time afterward they resided with Mrs. Newkirk on the east half of said quarter-section, and during nearly all this time Mrs. Newkirk still recognized Mrs. Marshall as the owner of the west half of the quarter-section, and accordingly permitted Marshall to make improvements thereon as though the land was his wife's; but finally Mrs. Newkirk and Marshall quarreled, and then she told Marshall that they should not have the land unless they got it by law, and forbade his moving upon the land. Shortly afterward, however, he, with his wife, did move upon the land, and they have continuously occupied the same as their homestead and residence ever since, and have continued to make improvements thereon. The improvements made upon the land by them after they took possession...