Sanford v. Weeks

• Citation: 16 P. 465,38 Kan. 319
• Parties: EPHRAIM H. SANFORD v. HENRY M. WEEKS, et al
• Decision Date: 07 January 1888
• Court: United States State Supreme Court of Kansas

16 P. 465

38 Kan. 319

EPHRAIM H. SANFORD v. HENRY M. WEEKS, et al

Supreme Court of Kansas

January 7, 1888

Error from Wabaunsee District Court.

ACTION brought December 15, 1880, by Henry M. Weeks and Joel P Weeks, against Ephraim H. Sanford, to quiet title to the northeast fractional quarter of section six, township fourteen, of range twelve, in Wabaunsee county, containing one hundred sixty-one and twenty-eight hundredths acres. On March 18, 1881, E. H. Sanford filed a demurrer to the petition, which was overruled on August 18, 1881; and on August 24, 1881, E. H. Sanford filed an amended answer setting up title and possession under a written contract with Miss S. E. Bartholomew, dated December 8, 1879. On September 13, 1881, Henry M. and Joel P. Weeks filed their reply. Trial commenced August 1, 1885, before the court, a jury being waived.

The court made the following special findings of fact:

"1. That in December, 1879, S. E. Bartholomew, a single woman was the owner in fee simple of the northeast quarter of section six, township fourteen, range twelve, in Wabaunsee county, Kansas.

"2. That on the 27th day of September, 1880, the said S. E Bartholomew conveyed said land by warranty 'deed duly executed to Henry M. Weeks and Joel P. Weeks, the plaintiffs in this action, which deed was filed for record in the office of the register of deeds in the said county of Wabaunsee on the first day of October, 1880, and that on recording said deed by a mistake of the copyist the name of 'Joel P Weeks' was written 'Joseph P. Weeks,' and so appears on the record.

"3. That within a day or two after receiving said deed Henry M. Weeks and Joel P. Weeks took possession of said land and proceeded to build a dwelling house and make other improvements thereon, and within two or three weeks after taking possession moved into said house with their families, being both married men, and have had possession of said land ever since.

"4. That in the month of November, 1879, said defendant E. H. Sanford, then living at Eskridge, Kansas, near to said land, desiring to purchase the same, prepared and sent by mail to the said S. E. Bartholomew, then living at Topeka, Kansas, a written instrument, of which the following is a copy, to wit:

"'TOPEKA, KANSAS.--I hereby agree to convey to E. H. Sanford, of Wabaunsee county, Kansas, the northeast quarter of section six, township fourteen, range twelve, by warranty deed, for three hundred dollars and all taxes, penalties and interest that has accrued on said three hundred dollars since the first agreement of July last. To convey the same upon payment of said several sums, all contracts heretofore existing being treated as canceled. The said Sanford agreeing to pay said sums of money in thirty days from this date to the undersigned or her order.'

"And requested her to execute and return the same to him by mail.

"5. That the said S. E. Bartholomew did not comply with said request, but did write out in her own handwriting and sign a certain written instrument, of which the following is a copy:

"'TOPEKA, Dec. 8th, 1879.--I hereby agree to convey to E. H. Sanford, of Wabaunsee county, Kansas, the northeast quarter of section six, township fourteen, range twelve, by warranty deed, for three hundred dollars and all taxes, penalties and interest that has accrued on said three hundred dollars since the first agreement of July, 1878, to convey the same on payment of said several sums. All contracts heretofore existing being considered as canceled. The said Sanford agreeing to pay the said sums of money in thirty days from this date to the undersigned or her order.--S. E. BARTHOLOMEW.'

"And on the date thereof, she sent the same to the said E. H. Sanford, at Eskridge, Kansas, by mail, and it was within a day or two thereafter received by said Sanford.

"6. That said Sanford, neither in writing nor verbally, by mail or otherwise, notified the said S. E. Bartholomew that he had received said written instrument, or that he accepted its terms and conditions, but he caused it to be filed for record in the office of the register of deeds of Wabaunsee county, Kansas, on the 11th day of February, 1880.

"7. That prior to the 8th day of December, 1879, the said E. H. Sanford, under some sort of authority or contract from said S. E. Bartholomew, has been in possession of said land, and has made some improvements thereon of the value of fifty dollars, and was so in possession at the time he received said written instrument, but that after said date he made no improvements of any kind on said land, and was not in open and notorious possession thereof on the 27th day of September, 1880, so as to put any person on inquiry as to his rights.

"8. Said E. H. Sanford never at any time, prior to the commencement of this suit, paid or offered to pay any taxes, interest or penalties on said land, and that he never at any time, either before or since the commencement of this suit, tendered to the said Bartholomew or to anyone for her, or to said plaintiffs or to anyone for them, the amount which he was to pay for the said land according to the terms of said written instrument sent to him by the said S. E. Bartholomew on the 8th day of December, 1879.

"9. That the said plaintiffs, Henry M. Weeks and Joel P. Weeks, had no notice either actual or constructive, at or before the 27th day of September, 1880, that said Sanford had or claimed to have any interest whatever in said land.

"10. That on the day of December, 1880, and before the commencement of this suit, the said E. H. Sanford commenced an action of forcible entry and detainer of said land against the said Henry M. Weeks and Joel P. Weeks, which action is still pending in this court."

And thereupon the court made the following conclusions of law:

"1. That said written instrument, dated December 8th, 1879, sent by the said S. E. Bartholomew to the said E. H. Sanford, was a contract for the conveyance of said land by the said Bartholomew to the said Sanford.

"2. That the said E. H. Sanford having failed to perform any of the conditions of said contract imposed upon him, and having failed to tender to said S. E. Bartholomew within a reasonable time after the maturity thereof the money due upon said contract, has lost all equities in said land acquired by him under or by virtue of said contract.

"3. That said plaintiffs, Henry M. Weeks and Joel P. Weeks, were purchasers in good faith without notice of any rights...