Schermerhorn v. Mahaffie

• Decision Date: 09 October 1885
• Parties: THEODORE SCHERMERHORN SR. v. MARY F. MAHAFFIE, et al.--CORNELIA SCHERMERHORN, et al., v. WM. O. WILLIAMS, et al
• Court: Kansas Supreme Court

8 P. 199

34 Kan. 108

THEODORE SCHERMERHORN SR. v. MARY F. MAHAFFIE, et al.--CORNELIA SCHERMERHORN, et al., v. WM. O. WILLIAMS, et al

Supreme Court of Kansas

October 9, 1885

Error from Johnson District Court.

TWO ACTIONS, one brought by Theodore Schermerhorn sr., in the names of his children, against Mary F. Mahaffie and others to set aside a certain decree, and for partition of real estate; the other action, a proceeding for allotment begun by plaintiff in the probate court, and by defendants appealed to the district court. Both cases were tried together before the court without a jury. On April 2, 1884, the court adjudged in the former case that the parties to this action take as set forth in its findings and conclusions, and that the same stand as its decree; that Theodore Schermerhorn sr. pay the costs made in the action by the minor plaintiffs and himself and that the defendants, William O. Williams, Rosa Lee Williams, and Mary F. Mahaffie, (formerly Williams,) pay all the costs by them made therein. In the latter case the court dismissed the action and adjudged costs against the plaintiff. He brings the cases to this court.

Judgment affirmed.

E. B Gill, for plaintiff in error.

A. Smith Devenney, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On or about March 1, 1857, Oscar F. Williams and Sarah Williams, his wife, with their family, settled upon the northwest quarter of section 24, township 13, range 22, in Johnson county, Kansas. Said quarter-section of land contained 160 acres, and belonged to the government of the United States. Williams and his wife resided upon this land as long as they lived. On April 19, 1856, Williams purchased the land from the government of the United States, and received a certificate of purchase therefor. On July 15, 1858, Williams, for the consideration of $ 750, executed his individual warranty deed for the land to William Peacock, of Jackson county, Missouri. His wife did not sign the deed, or join in its execution. On July 20, 1858, Peacock, for the expressed consideration of $ 1, executed a warranty deed for the land to Mrs. Williams. On July 23, 1858, the foregoing deeds were recorded. On June 1, 1860, a patent for the land was issued by the government of the United States to Williams. On April 13, 1868, Jane White, who owned the southeast quarter of the northeast quarter of section 18, township 13, range 23, in Johnson county, Kansas, it being forty acres, conveyed the same by warranty deed to Williams. Late in the fall of 1863, Williams died intestate, leaving as his heirs a widow, said Sarah Williams, and three children, Mary F. Williams, who was subsequently married to George B. Mahaffie and became Mary F. Mahaffie, William O. Williams, and Rosa Lee Williams. In January, 1866, Mrs. Williams was married to Theodore Schermerhorn, and from that time forward is known as Sallie P. Schermerhorn. Schermerhorn then removed upon said quarter-section of land, and has resided thereon with his family up to the present time. On October 23, 1878, tax deeds for the taxes of 1874, 1875, 1876 and 1877 were issued by the county clerk of Johnson county to Schermerhorn for all the foregoing land. On October 25, 1878, these tax deeds were recorded. On October 29, 1881, Mrs. Mahaffie and her husband, George B. Mahaffie, conveyed by quitclaim deed all their interest in all the foregoing land to William O. Williams.

On November 28, 1881, Rosa Lee Williams and William O. Williams commenced an action in the district court of Johnson county against their mother, Mrs. Schermerhorn, and her husband, Theodore Schermerhorn, for an accounting, and to set aside said tax deeds, and for rents and profits, and for a partition of all the foregoing lands. On December 28, 1881, the defendants answered. On March 11, 1882, Mrs. Shermerhorn died intestate, leaving as her heirs the said Williams children, her husband, Theodore Schermerhorn, and three children by Schermerhorn, born since her marriage to Schermerhorn, to wit: Cornelia Schermerhorn, Theodore Schermerhorn, and Elma Schermerhorn. On March 31, 1882, the Schermerhorn children were made parties to the action, and the plaintiff's petition was amended accordingly. On June 5, 1882, a guardian ad litem was appointed for the Schermerhorn children, who were minors. On June 27, 1882, the guardian ad litem answered for the Schermerhorn children by filing a general denial, and on the same day a decree by consent of all the parties was rendered by the court, partitioning the property between them, giving the south half of each tract of land to the Williams children, and the north half of each tract of land to Schermerhorn; and on the same day Schermerhorn, by a quitclaim deed, conveyed the south half of each of said tracts of land to the Williams children, and the Williams children, including Mrs. Mahaffie, conveyed, by a quitclaim deed, the north half of each of said tracts of land to Schermerhorn.

On January 4, 1883, Schermerhorn, in the name of his children, by their next friend J. H. Kirby, brought this present action against the Williams children and himself, to set aside said consent decree and for partition of all the foregoing real estate. On January 8, 1883, Schermerhorn filed an application in the probate court of Johnson county against the Williams children and his own children, asking for an allotment to him of his interest in the foregoing real estate. On January 16, 1883, the Williams children filed their separate answer to the petition in the district court. On February 2, 1883, the probate court allotted a certain portion of said real estate to Schermerhorn. On February 3, 1883, the Williams children took an appeal from this allotment by the probate court to the district court, and on the same day the Schermerhorn children filed a reply, a general denial, in this present action to the answer of the Williams children in the district court. On February 8, 1883, Schermerhorn filed a separate answer in the action commenced in the district court. On March 22, 1884, both the action commenced in the district court and the proceeding for allotment commenced in the probate court and appealed to the district court, came on for trial before the district court, and both cases were heard and tried together before the court without a jury. On April 2, 1884, the court decided both these cases, making findings and rendering judgment thereon. The judgment in each case was in favor of the Williams children and against Schermerhorn and his children. Motions were made for a new trial in the action commenced in the district court, but not in the other. We suppose these motions were made in proper time, though the record hardly shows it. The court overruled the motions, and both cases have been brought to this court for review, and both were submitted to this court at this present July term, 1885; and this opinion is intended for both cases.

The first question to be considered in this case is with regard to the validity or invalidity of the deed executed by Oscar F. Williams on April 19, 1858, to William Peacock, of Jackson county, Missouri. It is claimed by the Williams children, and was held by the court below, that this deed is void under §§ 1 and 2, chapter 32, of the Laws of 1858. (Laws of 1858, [34 Kan. 112] p. 236.) Section 1 of said act provides that a homestead, not exceeding 160 acres, shall be exempt from judicial process. Section 2 provides as follows:

"SEC. 2. That such exemption shall not affect any laborer's or mechanic's lien, or extend to any mortgage thereon lawfully obtained, but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same; but nothing in this section contained shall be so construed as to affect the validity of any mortgage secured before the passage of this act, and nothing contained in ...