Tipton v. Warner

• Decision Date: 09 January 1892
• Citation: 28 P. 712,47 Kan. 606
• Parties: SAMUEL S. TIPTON v. ISAAC WARNER
• Court: Kansas Supreme Court

28 P. 712

47 Kan. 606

SAMUEL S. TIPTON v. ISAAC WARNER

Supreme Court of Kansas

January 9, 1892

Error from Anderson District Court.

SUIT by Warner against Tipton, to recover land. Judgment for plaintiff, at the adjourned March term, 1888. The defendant brings error. The opinion states the facts.

Judgment affirmed.

W. A Johnson, for plaintiff in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.

July 20, 1859, at Lawrence, Kan., Samuel S. Tipton received from Isaac Warner three land warrants of the value of $ 320 and $ 180 in money, to use in locating land in Kansas for the benefit of Isaac Warner, with the understanding between said Tipton and Warner that, if said Warner was not suited with the land selected by Tipton, Tipton should pay him his money back, including $ 320 for the warrants, in one year, with interest at the rate of 10 per cent. Tipton located said warrants upon lands in Anderson and Coffey counties, Kansas, in his own name. He never deeded any of said lands to Warner, but on the 22d of March, 1880, he deeded 120 acres of the land to the defendant Catherine Mooney for $ 600, and on the next day deeded 80 acres of said land to W. H. Reed for $ 475, who subsequently conveyed the same to the defendant Amanda Stout. Tipton still held the balance of said land in his own name at the commencement of this suit, but afterward, on the 6th of March, 1886, he mortgaged said land to N. P. Garretson, one of the defendants, for the sum of $ 1,000. Tipton never paid Warner any of the $ 180, nor anything for said warrants. The cost of locating said land, and the taxes on the same prior to the commencement of this suit, amounting to $ 846.52, were paid by Tipton, and none of said amount has been paid by Warner to Tipton. August 24, 1885, in response to a letter from Warner inquiring about the transaction, Tipton wrote as follows to Warner:

"Yours came to hand a few days since, and as I am very busy and thought to write you every day, but it rained to-day and stopped me from haying. I take this opportunity of saying that I entered three pieces of land and kept them as long as I could, for taxes were eating me up, and I was obliged to sell, but if you will come out here I think we can come to some understanding with regard thereto and get all right."

In response to said letter Warner came to Kansas, called on Tipton, and demanded deeds to the land, which were refused by Tipton. The defendant Tipton answered to the amended petition, and the case was dismissed as to the other defendants. The answer was, first, a general denial, and second, a plea of the statute of limitations. The case was tried by the court without a jury, the court making the following findings of fact:

"1. In 1859, and ever since, the plaintiff was and remains a resident of Illinois, and the defendant is and for many years has been a resident of Kansas.

"2. On the 24th of August, 1885, the defendant wrote, signed and mailed to the plaintiff the letter of that date set out in the petition, in response to one inquiring about said land warrants, land, and money. The plaintiff received said letter and thereupon responded thereto by going in person to Kansas, called upon defendant and made the election and demand stated in the third paragraph of the agreed facts.

"3. All of these lands until sold were wild, vacant and unoccupied, and that tract remaining unsold is still in that condition."

Upon said facts and the admissions contained in the agreed statement of facts, the court found the following conclusions of law:

"1. The lands so located by defendant became and were at the plaintiff's option the property, in equity, of the plaintiff. The legal title was held in trust by the defendant, who had a lien thereon for the taxes paid by him, and who is chargeable with the $ 180 advanced in 1859, and the proceeds of the sales and mortgage of the lands, as set forth in the agreed statement.

"2. The $ 180 should be applied upon the taxes first paid by defendant, and the balance of said taxes, with interest at 7 per cent., should be deducted from the money so received from the sale and mortgaging of said lands, with interest, and the remainder, to wit, the sum of $ 2,204.69, should be recovered by the plaintiff from the defendant with costs.

"3. The plaintiff should also have judgment for the conveyance to him of the tract remaining unsold, subject to the $ 1,000 mortgage thereon. Judgment will be entered accordingly."

Motion to set aside the findings of fact and conclusions of law and grant a new trial was overruled, and judgment entered as follows:

"4. It is therefore ordered and adjudged and decreed, that the said defendant Samuel S. Tipton, within 30 days from the rising of this court, execute and deliver to the said plaintiff, Isaac Warner, a good and sufficient deed with covenants of general warranty, conveying the premises in the said petition described, to wit: The east half and the southwest quarter of the southwest quarter of section 15 township 20, of range 17, in Coffey county, Kansas, to the said Isaac Warner in fee-simple, subject to the mortgage of $ 1,000...