Weeks v. White

• Decision Date: 10 May 1889
• Parties: CHARLES WEEKS et al. v. WM. A. WHITE
• Court: Kansas Supreme Court

21 P. 600

41 Kan. 569

CHARLES WEEKS et al. v. WM. A. WHITE

Supreme Court of Kansas

May 10, 1889

Error from Rooks District Court.

EJECTMENT by White against Weeks and two others. Judgment for plaintiff, on July 19, 1887. The defendants bring the case here. The opinion states the facts.

Judgment affirmed.

C. W Smith, for plaintiffs in error.

A. G Hardesty, and W. A. Fallas, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This was an action in ejectment, commenced in the district court of Rooks county on the 4th day of November, 1886, by the defendant in error against the plaintiffs in error, to recover the possession of one acre of ground in the northwest corner of the northeast quarter of section 35, township 9, of range 18, particularly described by metes and bounds. The quarter-section of land was originally taken under the provisions of the homestead act, by one James McCarty, who had entered into a verbal agreement with Markham & Byers, whereby they were to have the possession of the acre of land for the purpose of erecting a store building, and conducting a general mercantile business. He also agreed with them that when he obtained the title to the quarter-section of land from the government, he would convey them the acre upon which their building was located. McCarty relinquished his homestead rights in favor of Dr. P. M. Frisbie, who took possession of the land and occupied it as a homestead under the laws of the United States. When Frisbie obtained the possession, he found Markham & Byers in possession of the acre of land, and they had constructed a building thereon. It is alleged that a part of the consideration of the relinquishment of McCarty in favor of Dr. Frisbie, was, that Frisbie should continue the agreement with Markham & Byers. After this the plaintiff in error, Weeks, purchased the building of Markham & Byers, and such possessory interest as they might have in the acre of ground, and Weeks sought out Frisbie and entered into the same agreement with him that Markham & Byers had with McCarty. Weeks went into possession of the building and the acre of land in 1879, and was in possession at the time this suit was instituted. In the meantime Dr. P. M. Frisbie died, leaving a widow, M. C. Frisbie, and certain adult children. Under the provisions of the congressional homestead law, the widow is granted the right to take the land as a homestead, and she, at the proper time, made application to the local land office to prove up on this quarter-section of land. She obtained a final receipt from the land office. Her right to make such proof was contested by Chas. Weeks by way of a protest, because before this time she had denied that Weeks had any right in the acre of land, and had refused to recognize the validity of her husband's agreement with Weeks. Before the commencement of this action, Mrs. Frisbie had commenced an action of unlawful detainer against Weeks before a justice of the peace. This case was tried before the justice, then appealed to the district court, and there decided against her. At the time this action was commenced, the protest of Weeks against her right to make final proof of the homestead was on file in the general land office, and was undetermined. After obtaining the final receipt, Mrs. Frisbie conveyed the acre of land in controversy to Wm. A. White, who brings this action.

The trial was had in July, 1887, before a jury. After all the evidence had been heard, the court instructed the jury that upon the law and evidence in this case, the plaintiff, W. A. White, was entitled to a verdict in his favor. The jury returned a verdict in favor of White, and a judgment was rendered in his favor for the recovery of the possession of the acre of ground. There are numerous exceptions saved to the rulings of the trial court, on the admission and rejection of evidence; to the overruling of the demurrer of the defendants below to the plaintiff's evidence; and to the overruling of the motion for a new trial.

I. It is not disputed by counsel for plaintiffs in error but that this court has decided in the cases of Brake v Ballou, 19 Kan. 397, and Mellison v. Allen, 30 id. 382, that a contract made for the sale of land being held under a homestead entry under the act of congress is void, if the contract is entered into prior to the time of acquiring title thereto by the homesteader. It is also conceded that a court of equity would refuse to enforce the specific performance of such a contract. It is claimed, however, that this is not such a case; that the pivotal question is here: "Have Weeks and family any such interest in this land, by reason of their occupancy of it, as will be respected, recognized and enforced by the courts of this state?" We...