Scantlin v. Allison

• Decision Date: 05 September 1884
• Citation: 4 P. 618,32 Kan. 376
• Parties: SAMUEL SCANTLIN, et al., v. CHARLES B. ALLISON
• Court: Kansas Supreme Court

4 P. 618

32 Kan. 376

SAMUEL SCANTLIN, et al., v. CHARLES B. ALLISON

Supreme Court of Kansas

September 5, 1884

Error from Brown District Court.

ACTION brought by Allison against Scantlin and two others for partition of certain real estate, and also for the rents and profits thereof. Trial at the September Term, 1883, and judgment for plaintiff. The defendants Samuel Scantlin and Ellen V. Scantlin bring the case to this court. The material facts are stated in the opinion.

Judgment reversed.

James Falloon, for plaintiffs in error.

C. W Johnson, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Charles B. Allison against Samuel Scantlin, Ellen V. Scantlin, and Angeline Onstott, for partition of certain real estate situated in Brown county and also for rents and profits for the use of such real estate.

It appears that in 1869 and prior thereto, the property in controversy belonged to George Allison; that by will he devised the same to his five children, in equal shares, the sad Charles B. Allison being one of such children; that soon after the execution of such will the testator died, and the will was then duly probated. On March 26, 1870, all the said children except Charles united in executing a deed for the land to Samuel Scantlin, a purchaser of the land, and Scantlin, to secure a portion of the purchase-money, executed a mortgage for the land to James B. Allison and John M. Anderson, executors for the estate and guardians for Charles B. Allison, who was then a minor. Both the deed and the mortgage included the entire tract of land and every interest therein, but of course they could not transfer or affect the interest of Charles B. Allison. Scantlin immediately took possession of the land, claiming the entire interest in the same, and made necessary and proper improvements thereon, and enjoyed the entire rents and profits thereof up to November 18, 1878, when he executed a deed conveying conditionally the undivided four-fifths thereof to his daughter Ellen V. Scantlin. For a fuller statement of some of the facts of the case, see the case of Scantlin v. Allison, 12 Kan. 85, et seq. Also on April 14, 1873, Scantlin executed a mortgage for the entire property to Angeline Onstott.

After Scantlin conveyed the undivided four-fifths of the land to his daughter Ellen, she leased the same to her brothers, who have since occupied and cultivated the same. All this was done without any arrangement being made between Charles B. Allison and any of the Scantlins, and without any consent or dissent on the part of Charles B. Allison. On May 26, 1882, Charles B. Allison arrived at the age of 21 years, and immediately thereafter commenced this action. The court below rendered judgment in favor of the plaintiff, Charles B. Allison, for the partition of the property, giving to him one-fifth thereof and to Ellen V. Scantlin the other four-fifths. No objection is made to the judgment for partition. But the court also rendered judgment in favor of Allison and against Samuel Scantlin for the rents and profits of the undivided one-fifth of the property up to November 18, 1878, less one-fifth of the value of the necessary improvements made on the property by Scantlin, and less a proportionate share of the taxes paid by Scantlin for the years 1870 to 1874; and also rendered judgment in favor of Allison and against Ellen V. Scantlin for the rents and profits of the undivided one-fifth of the land after November 18, 1878, less one-fifth of the value of the necessary improvements put on the land by her; and to these judgments for rents and profits objection is made. Judgment was also rendered in favor of Angeline Onstott, foreclosing her mortgage as against the four-fifths of the property awarded to Ellen V. Scantlin; and to this judgment no objection is made. The defendants Samuel Scantlin and Ellen V. Scantlin now file a petition in error in this court, asking for a reversal of the judgment of the court below, so far as it gives to Charles B. Allison the aforesaid rents and profits; and Charles B. Allison has filed a cross-petition in error in this court.

We do not think that the court below has erred in any of its rulings, except in rendering judgment in favor of Allison and against Ellen V. Scantlin for rents and profits. We think the judgment in favor of Allison and against Samuel Scantlin for rents and profits is correct....