Lacy v. Comstock

The opinion of the court was delivered by Johnston, J. : It is contended that the instrument by which Bernard Rodgers conditionally gave 80 acres of land to Charles D. Rodgers operated as a conveyance of the land in priesenti, and that as the use or issues and profits are incidental and follow the land, Charles D. Rodgers and his grantee are entitled to the rents of the same, or at least to so much of' the rents as accrued after the death of Bernard Rodgers. The instrument, as will be seen, is not an absolute conveyance. Bernard Rodgers not only reserved the rents, issues and profits arising from the land while he lived, but he also reserved to himself the right to dispose of the land during his lifetime. It is plain that the transfer was not to be effective until his death, and it is urged with much plausibility that the instrument is testamentary in its character. (Reed v. [89] Hazleton, 37 Kas. 321; Hazleton v. Reed, 46 id. 73.) But, whether it is or not, it is'manifest that the purpose of the grantor was to reserve the title to and dominion over the land while he lived. It was his own property, and he was at liberty to give it upon such terms and conditions as his judgment and desires might prescribe. As was his right, he reserved to himself the use of the land, and also the control and disposition of the same. It was competent for him to have transferred the entire interest in the land by gift, grant, or bequest, and certainly he had ample power to make a like transfer of the use or rents arising from the same. While the title and dominion of the property remained in him, he bequeathed to his daughter the rent of the farm for the three years for which it had been leased. This act was certainly within the reserved power of Bernard Rodgers, and sufficient under any view to give to the daughter the use of the land and the rent notes which had been given for the years mentioned. We think the conclusion of the trial court was just and correct, and therefore its judgment will be affirmed. All the Justices concurring.