Wolf v. Washer

• Decision Date: 07 November 1884
• Citation: 4 P. 1036,32 Kan. 533
• Parties: HESTER A. WOLF v. LARKIN WASHER AND DAVID WOLF
• Court: Kansas Supreme Court

4 P. 1036

32 Kan. 533

HESTER A. WOLF v. LARKIN WASHER AND DAVID WOLF

Supreme Court of Kansas

November 7, 1884

Error from Wyandotte District Court.

ACTION brought by Wolf against Washer and another, to set aside a certain deed. Trial by the court at the December Term, 1883. At the close of the plaintiff's evidence, the defendants demurred thereto on the ground that no cause of action is proved in favor of the plaintiff and against the defendants. The court sustained the demurrer, and rendered judgment for the defendants and against the plaintiff for costs. Plaintiff brings the case to this court. The opinion states the facts.

Judgment reversed and cause remanded.

D. B Hadley, for plaintiff in error.

Alden & McGrew, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of a suit in equity, brought by Hester A. Wolf against Larkin Washer and David Wolf, to set aside a deed of conveyance purporting to have been executed by the said David Wolf and Hester A. Wolf, husband and wife to Larkin Washer, and conveying to Washer certain real estate situated in Wyandotte county, Kansas, and belonging to David Wolf. It appears that in 1871 David Wolf and Hester A. Wolf, his wife, with their six or seven children, moved upon the land in dispute and occupied the same as their homestead from that time up to September, 1875, when they leased the same to a man named Megley, and removed therefrom to the state of Arkansas, where they resided until September, 1878, when they removed to a place near Westport, Missouri, where they resided until about January 20, 1880, when they executed a deed for the land to Philip Branner. This deed was left in escrow with Nathan Cree, to hold until Branner performed on his part, which was to pay off a judgment of $ 430 then existing against Wolf and wife, and to convey to David Wolf another piece of land, valued at $ 1,000. This judgment was rendered upon the foreclosure of a mortgage given by the Wolfs for a part of the purchase-money for the land in dispute, and was a lien upon such land. Afterward, it was ascertained that Branner could not procure the money to pay said judgment, and the transaction between him and the Wolfs was therefore abandoned. Afterward, Wolf sold the property to Larkin Washer for about $ 1,000, Washer agreeing to pay off the judgment, with some additional costs, and also to pay $ 500 in addition thereto; but instead of a new deed being executed from Wolf and wife to Washer, the name of Branner, the original grantee, was erased from the Branner deed, and the name of Washer was inserted therein as the grantee. This was done with the consent of all the parties except Mrs. Wolf. This deed, as thus changed, was recorded on February 16, 1880. About this time, Wolf and wife separated, and they have never lived together since. Neither of them has resided upon the land in dispute since they left it in September, 1875. Mrs. Wolf has continued to reside in the state of Missouri ever since her removal to that State in 1878.

There are some other facts in the case of a material character, which will hereafter be stated. On February 8, 1882, Mrs. Wolf commenced this present action to set aside the foregoing deed to Washer. Afterward, and on December 28, 1883, the case was regularly called for trial, and was tried by the court without a jury, and at the close of the plaintiff's evidence the defendants filed a demurrer thereto, upon the following ground, to wit: "No cause of action is proved in favor of said plaintiff and against said defendants." The court below sustained the demurrer, and rendered judgment in favor of the defendants and against the plaintiff for costs. The plaintiff then moved the court for a new trial, upon various grounds, which motion was overruled by the court. On March 8, 1884, a case was duly settled and signed for the supreme court, and the plaintiff, as plaintiff in error, now brings the case to this court for review.

Did the court below err in sustaining said demurrer? We think it did, and we shall now proceed to state some of the other facts which we think show that, the court below did so err.

It is claimed by Mrs. Wolf, (and there was considerable evidence tending to prove the same,) that the Wolfs have never procured any other homestead since they left their homestead in Wyandotte county, Kansas, in September 1875; that when they left such homestead they were owing, in addition to what has already been stated,...