Paulsen v. McCormack

• Decision Date: 03 July 1931
• Docket Number: 30025.
• Citation: 1 P.2d 259,133 Kan. 523
• Parties: PAULSEN et al. v. McCORMACK.
• Court: Kansas Supreme Court

1 P.2d 259

133 Kan. 523

PAULSEN et al. v. McCORMACK.

No. 30025.

Supreme Court of Kansas

July 3, 1931

Syllabus by the Court.

Payment of costs by one of two unsuccessful plaintiffs held to constitute satisfaction of judgment, precluding appellate review.

Plaintiffs sued in ejectment to recover the possession of a farm which they jointly claimed under their mother's will. They were defeated by defendant, who claimed under an oral and written gift from plaintiffs' mother, who was likewise defendant's grandmother. Judgment was entered in favor of defendant for costs, which were taxed against the plaintiffs. One of the plaintiffs paid the costs. Held, this payment was a satisfaction of the judgment which precludes an appellate review, and the appeal must be dismissed.

Appeal from District Court, Phillips County; Edward E. Kite, Judge.

Action by Julia Paulsen and another against Lottie McCormack. From an adverse judgment, plaintiffs appeal. On defendant's motion to dismiss appeal.

Dismissed.

Clarence Paulsen and Clyde L. Short, both of Concordia, for appellants.

E. S Rice, W. S. Rice, A. W. Relihan, and T. D. Relihan, all of Smith Center, for appellee.

DAWSON J.

This was an action in ejectment for the possession of a Phillips county farm to which the rival litigants laid claim through alleged rights conferred upon them by the record title holder, who was the mother of plaintiffs and grandmother of defendant.

The facts developed by the pleadings and evidence make a story of human interest to which we will give some space, although counsel for appellee intrudes a motion to dismiss the appeal which may prevent a full review.

It appears that Herman Gebers and Isabell Gebers, his wife, were thrifty pioneers of Phillips county who accumulated a good deal of property. They had three daughters, Julia, Mary, and Anna, all of whom grew to womanhood and married. Herman died testate in 1919, leaving a life interest in his property to Isabell with remainder to the three daughters. Isabell was a competent business woman, and she so successfully managed the life estate devised to her that her income exceeded her requirements. Isabell's daughter Anna married a man named Reese, and the defendant Lottie Reese McCormack is the issue of that marriage. When Lottie grew to womanhood, she married a Mr. McCormack apparently without her parents' approval and they left her and her husband to make their way in the world without parental assistance. That situation aroused the interest of Lottie's grandmother, Isabell Gebers, and the old lady took upon herself the task of putting the young couple on the road to prosperity.

Grandmother Gebers bought a good half section of land near Kirwin, poorly improved, and put Lottie and her husband upon it. She required them to pay the equivalent of the customary rent of the community, but devoted all the proceeds to the improvement of the property, and encouraged Lottie and her husband to improve it as their own. She repeatedly told them and the neighbors that the farm was Lottie's. Indeed before the old lady bought the farm, Lottie and Isabell had some correspondence in which Lottie had asked her grandmother to lease one of her farms. The grandmother declined, saying that she had a better plan than that; that she would buy a farm for Lottie with her own funds and then the rest of the family would have nothing to say about it. When Isabell did purchase the farm in 1922, she wrote to Lottie: "I have bought you a place, it is near Plato's folks, it is four miles west and one and one-half miles north of Kirwin. The farm land lies pretty good, the pasture is rough, but that does not make much difference, the improvements are poor. I thought it would be better to get better land and less improvements, than nice improvements and poor, rough land as you can improve the land and you cannot make much of a living off of poor land. I am giving you this place, you can improve it any way you want to. You will get possession next spring." When the old lady got ready to make her will, she sought the services of one of her sons-in-law, P. J. Paulsen, and he so framed the will as to leave it open to the construction that this farm was devised to his own wife and her sister. The language of the will recites: "Third: I give, devise and bequeath to my daughters, Julia Paulsen, of Concordia, Cloud County, Kansas, and Mary Pickel, of Speed, Phillips County, Kansas, share and share alike, all of my real property located in the State of Kansas."

Isabell died on December 29, 1928, and within due time after the probate of the will this lawsuit followed. The cause was tried before a jury, which rendered a general verdict in favor of defendant, and answered certain special questions, which read:

"Question 1. Did the defendant or her husband enter upon the land in question as the tenant or tenants of Isabell Gebers? Answer: No.

"Question 2. Did the defendant or her husband after entering upon the land in question become the tenant or tenants of Isabell Gebers? *** Answer: No.

"Question 3. If you answer Question No. 1 or No. 2 'yes' then state which was tenant. Answer:

"Question 4. Did Isabell Gebers make a gift of the land in question to the defendant? *** Answer: Yes.

"Question 5. If you answer 'yes' to Question No. 4, then state whether the gift was made by letter or verbally or both? Answer: Both by letter and verbally.

"Question 6. State fully the terms and conditions of such gift. Answer: Defendant was to live upon land and one-third of proceeds go for improvements.

"Question 7. Did the defendant take possession of the land by virtue of said gift and hold the same during the lifetime of said Isabell Gebers? Answer: Yes.

"Question 8. Did the defendant relying on the gift make valuable and lasting improvements on the land? Answer: Yes.

"Question 9. If you answer 'yes' to Question No. 8, then state fully what the improvements were. Answer: Cistern, windmill, granary, barn, chicken house, brooder house, planting fruit trees.

"Question 10. Did Isabell Gebers, after defendant or her husband entered upon the land, exercise any control over the land in question? Answer: No.

"Question 11. Did Isabell Gebers, after defendant or her husband entered upon the land, exercise any ownership over the land in question?

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