Stetson v. Freeman

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, J.:
• Citation: Stetson v. Freeman, 35 Kan. 523, 11 P. 431 (Kan. 1886)
• Decision Date: 09 July 1886
• Parties: HERBERT D. STETSON, et al., v. W. H. H. FREEMAN

11 P. 431

35 Kan. 523

HERBERT D. STETSON, et al., v. W. H. H. FREEMAN

Supreme Court of Kansas

July 9, 1886

[Copyrighted Material Omitted]

Error from Marshall District Court.

ACTION originally brought by J. C. Frissell and another against John V. Coon and E. J. Coon, partners under the firm-name of John V. Coon & Son, and Randall Stetson, to quiet their title to lot eleven on the county road within the city of Blue Rapids, and which they further describe by metes and bounds. It being made to appear to the court that the defendant Randall Stetson had transferred his right and interest in the property in dispute to Herbert D. Stetson and William H Tucker, they were, upon application, made parties defendant and permitted to file their answer. In it they allege that the sheriff's deed under which the plaintiffs claimed title to the lot, was executed by the sheriff without legal authority, and was void. They further allege that the land described in the plaintiffs' petition was not that which was described and intended to be conveyed by the sheriff's deed. Subsequently, the defendant John V. Coon filed an answer disclaiming any right or interest in the premises, and E. J. Coon answered that he claimed only under a tax deed which was admitted to be invalid. Afterward, it appeared to the court that the interest of the plaintiffs in the subject-matter of the action had been transferred to W H. H. Freeman during the pendency of the action, who was by the agreement of the parties substituted for the plaintiffs; and the real controversy in the case was between W. H. H. Freeman, as plaintiff, and Herbert D. Stetson and W. H. Tucker as defendants. At the March Term, 1884, the cause was submitted to and tried by the court, and the following findings of fact and law were made:

"1. As conclusions of fact in this case, the court finds that since this suit was commenced, whatever title plaintiffs had has been conveyed to W. H. H. Freeman, and that whatever title defendant Randall Stetson had has been conveyed to William H. Tucker and Herbert D. Stetson; also that the firm of John V. Coon & Son had no right or title to said premises, except that Emir J. Coon, a member of the firm of John V. Coon & Son, has a tax deed to said premises which deed it is admitted, however, is invalid, but it is also agreed that said Emir J. Coon has a lien by virtue of said tax deed for the sum of $ 27.15, and that the real controversy is between said W. H. H. Freeman and the said William H. Tucker and H. D. Stetson, who have by leave of court filed an answer herein.

"2. The property described by metes and bounds in the petition, and which the plaintiff claims, is lot eleven on the county road in the city of Blue Rapids, Marshall county, Kansas, and is of the value at this time of about $ 2,000.

"3. There are two objections made to the plaintiff's title by said defendants Tucker and Herbert D. Stetson: first, that the sheriff's deed under which the plaintiff claims, is invalid; and second, that if invalid it does not convey all of the metes and bounds claimed by the plaintiffs in their petition.

"4. It is admitted that Jane F. Hathaway had a valid judgment against the Blue Rapids Town Company which was obtained on the 28th of March, 1877, and that the Blue Rapids Town Company at that time owned the premises described by the plaintiffs in their petition as follows, to wit, lot No. eleven on the county road in the city of Blue Rapids, Marshall county, Kansas, the said lot eleven being within the following metes and bounds, to wit, beginning at a round iron pin about two and one-half feet long, flattened near the top, with W. H. H. cut therein, and driven in the county road in the quarter-section line running north and south through the center of section twenty, township four, range seven, east, at a distance of one hundred seventy-five feet north from a stake on the said quarter-section line, said stake being two hundred thirty-two feet west from the west end of the iron bridge crossing the Big Blue river in said city, and twenty-seven feet east of the northeast corner of D. Fairbanks's stone dwelling house situate on the west side of said county road, said stone being marked on the top with a cross thus, +; thence east from said iron pin to the northeast corner of what is known as John V. Coon & Son's gypsum mill; thence northerly along the outside of the sea-wall seventy-nine feet; thence west to a round iron pin about two and one-half feet long, flattened near the top, with the name 'Rix' cut in the same, said pin being on the said quarter-section line; thence south seventy-nine feet on said quarter-section line, to the said iron pin marked W. H. H., at the place of beginning, excepting therefrom a strip of land within said metes and bounds and along said quarter-section line recorded and dedicated as a part of the county road. [For this admission, see second defense in answer of Tucker and Stetson filed September 11, 1883.] It is further admitted that the title to said premises was in said Blue Rapids Town Company at the time of the levy of the execution under said judgment, and if not divested by the sale under said execution, that it was still in said town company at the date of the sheriff's deed made to Miss Hathaway on December 26, 1878. It is also admitted that at the commencement of this suit whatever rights Miss Hathaway acquired by said deed were in plaintiff, and that those rights are now in said W. H. H. Freeman.

"5. On the 13th of December, 1879, the Blue Rapids Town Company made a conveyance of whatever rights it had at that time in said premises to Randall Stetson, and since this suit was commenced he has conveyed his interest, whatever it may be, to said Tucker and Herbert D. Stetson.

"6. The sheriff, in making the levy under the execution on the Hathaway judgment, described the property levied upon as follows: On lot eleven, with fifty-horse water power attached, county road, street in the city of Blue Rapids, Marshall county, Kansas; also, the proceedings under said execution were regular, but the sheriff's return on said execution in regard to the sale of said lot eleven is as follows: 'And at the time and place stated in said notice, I offered the above lands and tenements above described for sale, to wit, lot eleven, with fifty-horse water power attached, county road, said lot being in the city of Blue Rapids, Marshall county, Kansas; and I did strike off to W. H. H. Freeman lot eleven, county road, with the fifty-horse water power attached, at and for the price of $ 667, being two-thirds or more than two-thirds of the appraised value thereof of said lot so struck off to said W. H. H. Freeman, he being the highest and best bidder therefor, and afterward the said W. H. H. Freeman refused to pay the amount of his bid or any part thereof; and I hereby return said lot not sold for want of good and sufficient bids, and I hereby return this execution unsatisfied in whole or in part.' Afterward, at the next term of court, said Hathaway made a motion to compel the sheriff to amend his return showing a sale of said lot. She claimed that said Freeman was her attorney and made the bid in her behalf and not on his own account, and her judgment being large enough to cover the amount of said bid, and the court finding that said Freeman did bid for her and not for himself, said motion was allowed, and the said sheriff ordered to amend his return accordingly, which he did, and the sale was confirmed, and a sheriff's deed made to her December 26, 1878, in which the property was described as in the levy. The sheriff resisted this motion, but the Blue Rapids Town Company had no notice of the motion to compel the sheriff to amend his return, or of the motion to confirm.

"7. When the said Blue Rapids was platted and the plat filed, it embraced a strip of land lying north and south along the Big Blue river about two hundred and thirty-two feet wide between what is called the county road running north and south, and the Big Blue river. This strip was platted into lots as long as said strip is wide, and about eighty feet wide, one end of which lots abutted on the river and the other on the said county road. One of the lots was numbered on said plat as lot eleven. A dam was erected across said river and a bridge built across the dam, which is the iron bridge referred to in the description in plaintiffs' petition. These lots were below the dam, and were intended as water-power lots; that is, lots upon which buildings might be erected containing machinery to be propelled by water power. This plat was filed for record January 28, 1871; no monuments were placed at the corners of said lots, and it was a very difficult matter to determine their exact boundaries. To avoid the trouble, the town company commenced to sell tracts of land from the place where said lots were located by metes and bounds, describing the boundaries of the lots. The first tract sold below the dam was to a man by the name of Waynant, for the purpose of erecting an oil mill; the next was sold to John V. Coon, for a gypsum mill; and the next tract of ground is what the plaintiff claims is lot eleven; and the next was sold to a paper-mill company. The foundation of the oil mill was erected; the gypsum mill has also been erected, and has been in operation. All of these buildings are substantial structures, built with stone, and costing, with the sea-walls, many thousands of dollars. What is claimed by the plaintiffs to be lot eleven, as they have described it in their petition by metes and bounds, does not interfere with the buildings either on the north or south. On the first day of June, 1875, a new plat was filed by the town company, and on this plat the lines dividing said strip of land into lots...