Denver, Memphis & Atlantic Railway Co. v. Lockwood

The opinion of the court was delivered by Horton, C. J.: Some preliminary questions are raised concerning the record, it being urged that it does not contain all the evidence introduced on the trial. “A case-made may be very brief) much more so than a transcript, and was devised mainly for the purpose of abridging the record and lessening the expense of the review.” (K. P. & W. Rld. Co. v. Quinn, 45 Kas. 477.) This action comes here upon a case-made, and it is recited therein “that the trial by the court was had upon the pleadings in the case, no evidence being introduced.” This recital shows that no evidence was introduced upon the trial; that the court considered the pleadings only, and rendered judgment thereon against the railway company. From the record, it is apparent that the court ruled that the answer of the railway company was demurrable. It is insisted that the deed from Jesse Bowdle and wife, on the 3d day of September, 1886, to the railway company, was not attached to the answer or made a part thereof; and, therefore, that this court cannot consider the recital of the deed, if no. evidence was introduced. The language of the answer is, that “such railway corporation, on the 3d day of September, 1886, for a [590] valuable consideration, became the owner of a strip of land 100 feet wide through said quarter section; that said conveyance so made was prior to the execution of the mortgage herein sued upon. A copy of said warranty deed is filed herewith and made a part hereof, marked 1 Exhibit A.’ ” The deed is not marked “Exhibit A,” but an inspection of the record shows that immediately after the answer appears the deed referred to, corresponding in all respects to the deed pleaded in the answer, with the filing marks upon it, as showing the date the answer was filed. The reply of the plaintiffs below refers to the deed and recognizes it in the following language: “The deed mentioned in said railway company’s answer is void and of no effect, and constitutes no prior right or title in the company to any of the real estate described in plaintiffs’ mortgage, for the reason that there is no definite description of any real estate in the deed by which a decree of court in favor of the railway company could be rendered as prayed for in the company’s answer.” Again, it is evident that, although the deed was not marked “Exhibit A,” it was filed as a part of the answer, and considered by all of the parties and the trial court as a part of the answer, because in the judgment rendered the court found that “The deed mentioned in the railway company’s answer was void and of no effect, and constituted no prior right or title in the company to any of the real estate described in plaintiffs’ petition as against plaintiffs’ mortgage, for the reason that there is no definite description of any real estate in the deed by which a decree of court in favor of the railway company could be rendered as prayed for in the company’s answer.” We are of the opinion that the various objections presented to the consideration of this case upon its merits are not tenable. The contention of plaintiffs below was, that the deed from Bowdle and wife to the railway company was void for uncertainty or indefiniteness of description. The trial court [591] sustained this contention. This is the cause of complaint. The description in the deed reads as follows: “The following-described real estate, situated in the county of Kingman and state of Kansas, to wit: A strip and tract of land 100 feet wide, of which the center line of the route and line of the Denver, Memphis & Atlantic railway of Kansas, as the land is now surveyed, staked, and located, is the center, being 50 feet each side of the center line of said route, over, across and through the following tract and tracts of land, as said route and line of said railroad passes through the same, to wit, the southeast quarter of section 26, township 27 south, of range 8 west, and the right of said railroad company aforesaid, through its agents, employés, servants, or contractors, to encroach upon the adjoining lands outside of the limits above mentioned, to which the parties of the first part have title or possession, for the purpose of building or constructing its roadbed and railroad and of completing or trimming its cuts and fills, and for all other purposes for the building, constructing or maintaining its roadbeds or to maintain and operate its said railroad.” We think that the answer, construing the deed as a part thereof, disclosed with absolute certainty the property sold and conveyed to the railway company prior to the execution of the mortgage. The law will not declare a deed void for uncertainty when the light which contempoianeous facts and circumstances furnish renders the description definite and certain. The answer recites, among other things: “’That as such railway company, on the 3d day of September, 1886, for a valuable consideration, it became the owner of a strip of land 100 feet wide through the said quarter section described in plaintiffs’ petition, by warranty deed from Jesse W. Bowdle and Margaret, his wife, the then owners of said quarter section ; said strip being 50 feet on each side of the center line of the roadbed, and along its route as now located through said quarter section.” The deed not only recites “along the line of the railway company, as the land is now surveyed,” but describes the line as “staked” and “located.” (Haynes v. Heller, 12 Kas. 381; Seaton v. Hixon, 35 id. 663; Thompson v. Railway Co., 23 Pac. Rep. [Cal.] 130.) The deed not being [592] void, and the trial court having erred in the judgment rendered, the case will be reversed, and the cause remanded. All the Justices concurring.