McCullough v. Finley

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

James McClaren died in 1869, leaving a will devising to his widow a life-estate in the land in controversy, consisting of an eighty-acre tract, with remainder in fee to his daughters, the plaintiff and the defendant. On March 16, 1874, these sisters orally agreed to divide the land, the plaintiff taking the south forty acres and the defendant the north forty acres, and on the same day the widow conveyed her interest in the respective tracts to her daughters by separate deeds. The husband of the defendant was also named as grantee in the deed to the defendapt of her share of the land.

The defendant took possession of her part of the land, and has at all times since been in the actual possession of it, claiming to be the owner; has made lasting and valuable improvements upon it; has paid all taxes assessed against it, and has received all the rents and profits accruing from it since 1874. The plaintiff lived on or near the tract deeded to her for a few years and then sold it, keeping the proceeds as if the land had been her own. She has known since 1874 that her sister claimed the exclusive right to the north forty, and throughout the years made no claim upon it of any kind until she commenced this suit, in February, 1902. The devisee of the life-estate died in 1888. The plaintiff now denies that her verbal agreement and her conduct and the conduct of her sister in reliance upon the agreement are sufficient to exclude her from title to, and possession of, the land.

*707 The courts have little forbearance toward claims so destitute of moral and conscientious quality. The statute of frauds was enacted to prevent, and not to foster, injustice, and the rule is settled in this state that possession, the payment of taxes, and permanent improvement under a parol agreement, with knowledge and acquiescence, remove the contract from the operation of the statute. (Holmden v. Janes, 42 Kan. 758 , 21 Pac. 591 ; Newkirk v. Marshall, 35 id. 77, 10 Pac. 571 ; Holcomb v. Dowell, 15 id. 378.) Upon the same principle a parol partition acted upon in thiscase will not be disturbed. (Crimmins v. Morrisey, 36 Kan. 447 , 13 Pac. 748 ; Duffey v. Rafferty, 15 id. 9, 13; 21 A. & E. Encycl. of L., 2d ed., 1137 et seq.)

It is said that the defendant’s possession must be referred to the deed from her mother as life-tenant and that she could not hold adversely to her cotenant of the fee. This proposition ignores the agreement between the parties under which the land was divided between them, and under which the plaintiff surrendered all right to the defendant’s portion. The cotenancy of the fee was then at an end. The plaintiff no longer held any estate in remainder in the defendant’s part of the land, and the defendant was at perfect liberty to take title to the life-interest in her own portion and hold the entire estate adversely to the plaintiff.

At the time the agreement to divide the land was made, the defendant lacked a month of being of age. The contract, however, was voidable only and became binding when the defendant failed to disaffirm within a reasonable time after attaining majority. (Gen. Stat. 1901, §4183.)

The case of Love v. Blauw, 61 Kan. 496 , 59 Pac. 1059 , 48 L. R. A. 257, 73 Am. St. Rep. 334 , has no *708 application because the partition in this case was between owners of the fee, and not between life-ten.ants on one side and remainder-men on the other.

The findings of fact are assailed as unsupported by the evidence. In a few unimportant particulars the court may have embodied in its findings some facts which the record only suggests', but every fact essential to a judgment in favor of the defendant was abundantly sustained.

The facts relied on as an estoppel to the plaintiff’s recovery were sufficiently pleaded, and the judgment of the district court is affirmed.

All the Justices concurring.