Holcomb v. Dowell

The opinion of the court was delivered by Brewer, J.:

This was an action of ejectment brought by the plaintiff in error, plaintiff below, for the recovery of a tract of twelve acres, in Brown county. Judgment was rendered for the defendant, and of this judgment plaintiff complains. The case was tried by the court, without a jury. Special findings of fact were made. No motion was made to set aside these findings, no exceptions taken to them, and no application for any further findings. . The errors alleged are, “that the conclusions of law are not the law of the case on the facts found; that on the facts found, plaintiff was entitled to recover the- premises, and that plaintiff was entitled to judgment and defendant was not.” Hence, the question presented to us is, which party upon the pleadings and facts found is entitled to judgment? We need not inquire whether the testimony Avas properly admitted, whether it sustained the findings, nor whether other- facts were also proved by it. McGonigle v. Gordon, 11 Kas. 167 . This we think eliminates some matters discussed in the briefs of counsel.

The petition was an ordinary petition in ejectment. The answer alleges a written contract for the exchange of farms; that subsequently, it was verbally agreed between the parties that' this contract should be set aside, and that plaintiff should, deed the twelve acres in controversy and a lot in North Robinson to the defendant; and the defendant should pay therefor $250; that in pursuance of said agreement the lot was selected, and deeded; that plaintiff put the defendant into possession of the twelve acres, and the defendant has put thereon lasting and valuable improvements, describing them; that the defendant has paid seven dollars, that there is due $243, which the defendant is willing to pay and *382 desires a specific performance. A reply was filed containing a general denial. Five findings of fact were made: 1st, That plaintiff had the legal title. 2d, That the parties made the written contract, that plaintiff’s wife did not sign that contract, and that the land plaintiff was to deed was that upon which he then and still resided. 3d, That this written contract was set aside, and a parol contract made as stated in the answer; that under this parol contract defendant went into possession, and made permanent and valuable improvements, and that this was done with the knowledge, consent, and approval of the plaintiff, and that defendant has ever since resided thereon. 4th, That the money agreed to be paid was to have been paid on the 1st of June after the contract, but has not been paid, in whole or in part, for want of funds, though payment has been frequently demanded. 5th, That plaintiff’s wife is still living. Upon these pleadings and findings did the court err in refusing to give plaintiff a judgment for possession, and in giving defendant a judgment for costs? We think not. The court tendered leave to the plaintiff to amend his petition, so as to make it one to foreclose his lien for the unpaid purchase-money, but he declined the offer, and claimed the land. Counsel in their brief discuss the question of a parol alienation of the homestead. But there is nothing in pleadings or findings from which it can in any way be inferred that this twelve acres was a part of the plaintiff’s homestead. It appears that the land mentioned in the original written contract was the land on which he resided, but it does not appear that this twelve acres is a part of that tract. If we. look to the testimony it would seem probable that it was a part of the homestead; but we find there also evidence tending to show the wife’s assent to the alienation, and improvements, and we suppose she can be bound equally and in the same manner with her husband. Edwards v. Fry, 9 Kas. 426 . The case then, as it stands, is a case of a parol contract for the sale of lands, accompanied by the taking of possession and the making of permanent and valuable improvements, with the knowledge and assent of *383 the vendor. In this the improvements were three or four times the value of the land. This, equity declares, takes the case out of the statute, and makés a contract binding upon the vendor, equally with one in writing. There is therefore a contract to sell lands, with, payment promised at a subsequent day, and not made as promised, possession taken and improvements of great value made'. Upon these facts will ejectment lie? We think not. Courtney v. Woodworth, 9 Kas. 443 .

The judgment will be affirmed.

All the Justices concurring.