Pennell v. Felch
| Decision Date | 06 April 1895 |
| Citation | 39 P. 1023,55 Kan. 78 |
| Parties | CHARLES PENNELL et al. v. HATTIE C. FELCH |
| Court | Kansas Supreme Court |
Error from Doniphan District Court.
ACTION by Hattie C. Felch against Charles Pennell and others, to recover certain land. The plaintiff recovered a judgment, and defendants bring the case here. The opinion herein, filed April 6, 1895, states the material facts.
Judgment affirmed.
S. L Ryan, for plaintiffs in error.
Albert Perry, C. D. Walker, and J. L. Berry, for defendant in error.
OPINION
This was an action to recover a 40-acre tract of land in Doniphan county, which is a part of a body of land purchased in 1859 and 1860 for persons who before that time had been the slaves of Joshua Pennell, of North Carolina. In 1855, Joshua Pennell made a will by which he gave to all of his slaves their freedom; and he directed that his executor, Joshua Winkler should remove them to one of the free states and purchase for them stock, implements and utensils needed for farming, and procure for them some land, the title of which should be settled in such way that the emancipated slaves and their children and issue should "have a common use and benefit of the said land during the time they may live on it; but if any of them shall remove from said land and cease to live upon it, then in that case the right and title of such of them as shall remove and cease to live upon it shall be determined, and he, she or they shall no longer hold right to any part of said land." A fund was set apart with which the executor was to purchase the land, and also pay the expenses of the removal of the emancipated slaves to the free state. Shortly after the making of the will, Joshua Pennell died in North Carolina, leaving eight slaves emancipated by the will, who were generally known by the name of the testator, a part of whom were removed to Kansas, in accordance with the directions of the will, and some of them sold themselves back into slavery, while others declined to avail themselves of the provisions of the will, and never came to Kansas. In 1869 a partition suit was brought in the district court of Doniphan county, in which all of the Pennells who were named in the will, and who had been brought to Kansas, were parties. In that proceeding the land which was purchased for them and upon which they had resided until that time was partitioned among them, and the parties to the proceeding took possession of the portions respectively assigned to them in severalty, and thereafter occupied the same. Under this proceeding, Augustus Pennell obtained the land in controversy in this action, and afterward, in 1877, upon a mortgage given by him and his wife, a judgment of foreclosure was rendered under which the land was appraised and...
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