Reynolds v. Reynolds

• Decision Date: 01 January 1883
• Citation: 1 P. 388,30 Kan. 91
• Parties: MARY A. REYNOLDS AND AMANDA REYNOLDS v. MARY A. REYNOLDS, a Minor, by Her Guardian, Elias McCowen
• Court: Kansas Supreme Court

1 P. 388

30 Kan. 91

MARY A. REYNOLDS AND AMANDA REYNOLDS v. MARY A. REYNOLDS, a Minor, by Her Guardian, Elias McCowen

Supreme Court of Kansas

January 1, 1883

Error from Wilson District Court.

THE nature of this action, and the facts, fully appear in the opinion. At the February Term, 1883, of the district court plaintiff, Mary A. Reynolds, a minor, by her guardian, Elias McCowen, recovered a judgment against defendants, Mary A Reynolds and another, who bring the case to this court.

Judgment affirmed.

S. S Kirkpatrick, for plaintiffs in error.

T. J. Hudson, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This action was commenced by Mary A. Reynolds, a minor, by her guardian, Elias McCowen, against Mary A. Reynolds and Amanda Reynolds, for the purpose of establishing a resulting trust in certain real estate in favor of the plaintiff and against the defendants. The defendants demurred to the plaintiff's petition, upon the ground that it did not state facts sufficient to constitute a cause of action; which demurrer was overruled by the court, and the defendants excepted. The defendants then answered, setting up that they were the absolute owners in fee simple of the land in controversy, and also setting forth considerable new matter not contained in the plaintiff's petition. The plaintiff replied to this answer, denying generally all the new facts set forth therein which might be considered as inconsistent with the plaintiff's petition. The parties then agreed upon the facts of the case, and set them forth in an agreed statement, which reads as follows:

"February 10, 1872, J. K. Reynolds purchased from the state of Kansas the southwest quarter of section 36, township 30, range 16, in Wilson county, Kansas, under the law then existing, providing for the sale of school lands in the state of Kansas, and entered into a contract complying with the provisions of the law then in force, and paid the first installment on said purchase, to wit: On February 10, 1873, he paid on said purchase, interest, $ 43.20; on February 10, 1874, he again paid interest on the balance of purchase-money, $ 38.40; on February 10, 1875, he paid $ 38.40, the interest on said purchase; on June 20, 1876, he paid the interest then due, $ 38.40, and made no further payment thereafter.

"On September 5, 1876, the said land was sold for the tax of 1875, and bid in by the treasurer of Wilson county at $ 12.26. On October 12, 1876, J. K. Reynolds died, leaving his widow Eliza J. Reynolds and the plaintiff as his heirs at law and next of kin.

"In December, 1876, Eliza J. Reynolds assigned and delivered to the defendants the original certificate of purchase of said land, obtained from the state by said J. K. Reynolds.

"On the 19th day of February, 1877, the defendants paid the state the balance due on the aforesaid certificate of purchase. On February 11, 1877, the state of Kansas issued to the defendants a patent in due form for said land, the defendants surrendering the certificate of purchase to the state. On May 9, 1877, the defendants redeemed said land from the tax sale aforesaid, and have ever since paid the taxes thereon, and have been in the possession thereof since December, 1876.

"The plaintiff is the only child of the said J. K. Reynolds and Eliza J. Reynolds, and the only heir of the said J. K. Reynolds except his widow. Said child, plaintiff, is now only eight years of age; Elias McCowen is the legal guardian of both the person and the estate of the plaintiff.

"At the time of the death of the said J. K. Reynolds he was residing on said land with his family, and had made valuable and lasting improvements thereon, and had so resided thereon for a number of years. In December, 1876, the widow Eliza J. Reynolds surrendered to the defendants full possession of said land, and removed therefrom, taking with her the plaintiff. Prior to the commencement of this action, the guardian of the aforesaid minor tendered to the defendants the sum of two hundred and fifty dollars as part, and her interest, of the purchase-price and tax due on said land at the time defendants made said purchase and paid said delinquent tax.

"The defendants neglect and refuse to execute a deed to and for said land, or any portion thereof, to plaintiff, although legal demand has been made on them therefor, and refuse to account to plaintiff or her guardian for any of the rents and profits arising therefrom. Defendants claim that they are the absolute owners of said land in fee simple.

"For the purposes of this case, and reserving the right to offer proof in case the court should be of the opinion that the plaintiff is entitled to recover, it is agreed that the rental value of said land is, and has been since defendants have been in possession, one hundred dollars per annum, which has been retained by defendants.

"The above and foregoing are the facts in said cause for the purposes of this case."

The case was tried by the court without a jury, upon this agreed statement of facts, and the court made findings in accordance therewith; and also made the following conclusion of law, and rendered the following judgment, to wit:

"And the court concludes as a matter of law from the facts found, that the plaintiff is the equitable owner of an undivided one-half of said premises. It, is therefore ordered that , and , he and they are hereby ordered, directed and appointed to go upon the said premises, and from actual view of the same make partition thereof in two equal one-half parts, assigning and setting off one of said parts to the plaintiff, and the other to the defendants; and in case partition of the premises cannot be had without manifest injury, then to make a just valuation and appraisement thereof in money; and that they report their doings in the premises to this court without unnecessary delay. And it is further decided, that in case partition cannot be had of said premises without injury, that the same be sold in the manner provided by law, and the proceeds brought into court and divided equally between the plaintiff and the defendants, and that the costs of such proceedings be paid out of the proceeds of said sale; and in case partition of the premises can be had, then each of the respective parties are decreed to pay one-half of the costs of said suit and proceedings."

To all of which rulings, judgments and decisions the defendants at the time excepted. Afterward, the defendants moved for a new trial, which motion was overruled by the court, and the defendants excepted; and the defendants now bring the case to this court for review.

In this court the plaintiffs in error, defendants below, claim that the court below erred in overruling their demurrer to the plaintiff's petition; and also claim that the court below erred in rendering the judgment which it did render upon the agreed statement of facts. Whether the court below erred, or not, in overruling the demurrer, we think is wholly immaterial; for substantially the same facts were set forth in the agreed statement of facts as had previously been alleged in the plaintiff's petition, and if the court below erred in overruling the demurrer, it also necessarily erred in rendering the judgment it did render on the agreed statement of facts, and the judgment should be reversed for such error. But if the court did not err in overruling such demurrer, then no harm was done by such ruling. Where a case is submitted to a trial court upon an agreed statement of facts, the court may generally render such a judgment in the case as the facts admitted by the parties will authorize; and this although the pleadings may to some extent be defective, informal, or even insufficient as pleadings; for where the parties have agreed upon all the facts of their case, either party has a right, without costs, and in furtherance of justice, to so amend his pleadings as to make them correspond with the facts admitted by the parties. Such an amendment would not take either party by surprise, and it should be permitted by the court in furtherance of justice. But if the pleadings were not in fact amended, then the court should generally consider them either as amended, or their defects, omissions or misstatements of fact as waived by the party in whose favor such defects, omissions or misstatements of fact tend to operate. Justice in such a case requires that the judgment be rendered upon the real facts of the case, without regard to any technical defects, inadvertent omissions or inaccurate statements which may be found in the pleadings.

This brings us to the question whether the court below erred in rendering judgment in favor of the plaintiff and against the defendants upon the agreed statement of facts, and whether the judgment which the court in fact rendered is the kind of judgment which it ought to have rendered.

The plaintiffs in error, defendants below, claim that no judgment of any kind should have been rendered in favor of the plaintiff below; and this for the reason, as they claim, that the plaintiff had no possible or conceivable interest in the property in controversy. They claim that all interest which the plaintiff or her ancestor ever had in the property was forfeited to the state by the non-payment of interest due on the purchase-money and the non-payment of taxes. The only question therefore for this court to consider is, whether there was in fact any such forfeiture. The statutes with respect to forfeitures by purchasers of school land for the nonpayment of the purchase-money, or interest thereon, or taxes accruing...