Stone v. French

• Decision Date: 09 July 1887
• Parties: JOHN STONE v. LUTHER C. FRENCH, et al
• Court: Kansas Supreme Court

14 P. 530

37 Kan. 145

JOHN STONE v. LUTHER C. FRENCH, et al

Supreme Court of Kansas

July 9, 1887

Error from Neosho District Court.

ACTION brought by Luther C. French against John Stone and others for the partition of certain land. Judgment for the plaintiff, at the April Term, 1885. The defendant Stone brings the case here. The opinion states the material facts.

Judgment affirmed.

Buck & Feighan, and Cox & Stratton, for plaintiff in error.

Hutchings & Keplinger, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action for the partition of 200 acres of land in Neosho county, brought in the district court of that county on October 16, 1884, by Luther C. French against John Stone and others. The case was tried before the court and a jury, and judgment was rendered for the partition of the property, giving to the plaintiff, Luther C. French, one-seventh thereof, and to the defendant John Stone one-seventh thereof, and to the other defendants the remainder thereof. To reverse this judgment, the defendant John Stone brings the case to this court, making the plaintiff, Luther C. French, and all the defendants except himself, defendants in error.

It appears that on March 1, 1878, and prior thereto, the property in controversy belonged to Francis B. French, although he had not yet entirely paid for the same. At that time he formed the intention of giving this land at his death to his brother, Dudley S. French, unless he should sell the same during his lifetime. On March 1, 1878, he wrote a letter to his brother, Dudley S. French, in which he stated among other things the following:

"In case I should drop off you can take possession of the land and do with it as you please. When I have paid the land out, if not sold, I will make a deed to it to you, inclose it in an envelope, direct it to you to be mailed in event of death, which would make it sure to you without expense or trouble."

Nearly one year afterward, and on February 18, 1879, Francis B. French signed a warranty deed for the property to Dudley S. French, and on April 4, 1879, acknowledged the deed before S. Michaels, a justice of the peace in said county. The deed also contained the words: "Signed, sealed and delivered in the presence of S. Michaels." The deed, however, never was in fact delivered. On August 2, 1879, Francis B. French died, in the possession of and owning the land in controversy. During all this time he was a single man, and did not leave at his death any wife or child, or father or mother, but left several brothers, including the plaintiff, Luther C. French, and Dudley S. French. It does not appear that any person, except Michaels and Francis B. French, ever saw the aforesaid deed, or had the slightest knowledge thereof, until about half an hour before French died, when it was found by William Welch, inclosed in an envelope with a letter, in a cigar box, in the drawer of the table, in the house occupied as a residence by French. The following words were indorsed upon this envelope: "This deed to be placed in the recorder's office at Erie, Kansas, for record, and the accompanying letter to be mailed as per direction thereon." At the time this deed was found French was speechless and unconscious, and remained in that condition until he died, about half an hour afterward. Welch immediately telegraphed to Dudley S. French, who resided at Clinton, Illinois, and French came to Kansas, arriving on August 4, 1879, at the place where Francis B. French died. Shortly afterward, Welch delivered to French the aforesaid deed. This is the first time that French ever saw the deed; and he never heard of it until after the death of Francis B. French. On August 6, 1879, Dudley S. French filed the deed for record in the office of the register of deeds of Neosho county. Dudley S. French then took possession of the land and remained in the possession thereof until he sold the same to John Stone, the plaintiff in error. Dudley S. French was a brother-in-law to Stone, and for a time lived at his house. He was weak in body and in mind, and a part of the time could scarcely dress himself. On June 10, 1882, he sold and conveyed this land by warranty deed to Stone, for the expressed consideration of $ 2,000, but for the real consideration of only $ 800. He was a single man at the time. The land was worth about $ 3,000. Stone at the time did not know that there was any infirmity in the title of Dudley S. French, and for the purposes of this case he must be considered as in fact a bona fide purchaser, whatever the law may be. The deed from Dudley S. French to Stone was recorded on June 16, 1882. At some time during the summer of 1882, Stone took possession of the land, and has remained in the possession thereof ever since. This action was commenced on October 16, 1884. All the heirs-at-law of Francis B. French, including the plaintiff below, Luther C. French, and Dudley S. French, were made parties to the action; so also were the defendant, John Stone, and S. Michaels, and others. Dudley S. French died on January 7, 1885, after this action was commenced but before the trial was had.

It is conceded by all parties that John Stone is entitled to one-seventh of the land in controversy--that amount being admitted to be the share inherited by Dudley S. French from Francis B. French, but Stone claims that he is entitled to all the land; and whether he is entitled to only one-seventh thereof, or to all the land, is the only substantial question involved in this case. The principal questions presented by counsel to this court are as follows: (1.) Was the deed from Francis B. French to Dudley S. French ever delivered so as to make it a valid deed? (2.) If not, then is John Stone for any reason entitled to more than one-seventh of the land in controversy?

There is no room for even a pretense that the deed was ever in fact delivered to Dudley S. French, or to anyone else; and there is scarcely any room for even a pretense that it was ever in law delivered. The only grounds upon which it is claimed that it was ever delivered, are the letter of Francis B. French to Dudley S. French, dated March 1, 1878; the indorsement on the envelope found in the cigar box, on August 2, 1879; and the words contained in the deed, to wit: "Signed, sealed and delivered in the presence of S Michaels." Now it may be conceded that these things constitute some evidence of a delivery, but when it is shown conclusively by the other evidence that there was no delivery, these things can have no force. Besides, the letter itself shows that...