Guild v. Althouse

[607] The opinion of the court was delivered by Clark A. Smith, J.: There are seven assignments of error, of which only four need be considered, as those remaining depend thereon. It is first claimed that the court erred by giving relief for the reason that the statute of limitations had run. It is true the court found that the defendant below had been in the open, notorious and exclusive possession of the land in dispute for more than fifteen years, but it is also true that within that period he, with his wife, had executed and delivered to the holder of the legal title a quitclaim deed to the land. Unexplained, as it is, this would probably defeat his claim to title by possession. It is next claimed that the court erred in admitting testimony to impeach the record in the partition suit. It is true parol evidence was admitted of an understanding between the brothers, both before and after the partition suit was determined, that the plaintiff below was to have the land in dispute, and probably in consideration of his brother’s acquiring the interest of plaintiff through the partition suit. The court, however, found only that such an agreement was made after the determination of the suit. Harman in his petition alleges that his brother, John A., did not in fact pay him for his interest in the land conveyed by the sheriff to John A. in the partition suit. The journal entry recording the confirmation of the sale to John A. recites that it was made to appear to the court that John A. had paid the sum due Harman for his interest in the land. That court records for some purposes import absolute verity cannot be questioned; but if Harman gave John A. a receipt for money that he did not in fact receive, in consideration of a promise of John A. to convey certain other lands to him, we see no reason why Harman should not prove the fact by other evidence than his own testimony, especially [608] when the only effect of such evidence is to prove a consideration for the deed to the other land which John A. and his wife did afterward make to Harman. The claim that the court erred in its findings of fact cannot be sustained. Our attention is not called to any particular finding of fact which it is claimed is not supported by evidence, and we have found none. The plaintiffs in error contend that the court erred in its conclusions of law. Many of the dealings of these brothers — who appear to have had unbounded confidence in each other — with reference to their respective interests in this quarter-section of land formerly owned by their father, unexplained as they are by the death of one and the statutory incompetence of the other to testify, seem inconsistent with any theory which may be assumed of their respective rights or evidence dense ignorance on their part of all legal forms in their business. Harman and his wife, in 1889, made a quitclaim deed of about forty acres of the land to John A., of which tract Harman never had the legal title, but the title to which was, and for years had been, in John A. Still Harman had been in possession of this tract for several years prior, and has so continued ever since, and has continuously claimed to own it, and John A., from 1885 to the day of his death, as continuously admitted the possession and ownership of Harman. Very shortly before his death John A. and his wife made to Harman a warranty deed for this tract and placed it in escrow with Guild, to be delivered to Harman when Harman and wife should deliver a deed to another tract of the land, to which Harman had no title and John A. had had full legal title and undisputed possession since the determination of the partition suit in 1885. The decision of the court gives effect to the evident intention of the brothers as well as of the widow, does justice between the parties, and is sustainable on legal [609] grounds. The deed from John A. Althouse and wife, Lizzie, to Harman, as the court was justified by the evidence in finding, was placed in escrow with plaintiff in error Guild. It was not void for uncertainty, on the theory that “that is certain which can be made certain,” and was not revoked by the death of the grantor. Upon performance of the conditions upon which it was deposited it became of full force and effect as a conveyance, and Harman Althouse became entitled to the possession of it. (Davis v. Clark, 58 Kan. 100, 48 Pac. 563; 11 A. & E. Encycl. of L. 344.) The judgment of the district court is affirmed. All the Justices concurring.