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(5 Kan. App. 336)

TOWNSDIN V. TOWNSDIN. (Court of Appeals of Kansas, Northern Depart

ment, C. D. March 22, 1897.) FORCIBLE ENTRY AND DETAINER CERTIFICATION

TO DISTRICT COURT-LIMITATIONS. 1. Where an action of forcible entry and detainer is upon plea of title certified to the district court, it is not changed to an action for the recovery of real property; it merely changes the forum, but does not change the action.

2. The two years' limitation does not commence to run against a tenant from year to year until the service of notice to terminate the tenancy. Quære, had the defendant below "shown a clear, definite agreement and understanding between plaintiff and defendant's husband or herself, by which the defendant or her husband was to bave the land in controversy,' said agreement extending over more than one year's duration, would the defendant have been entitled to recover thereon?

(Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Action by Margaret Townsdin against Lizzie J. Townsdin. Judgment for plaintiff, and defendant brings error. Affirmed.

Theo. Laing and I. A. Rigby, for plaintiff in error. J. W. Sheafor, for defendant in error.

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WELLS, J. Defendant in error, Margaret Towusdin, on March 7, 1893, brought an action of forcible detainer, before a justice of the peace of Cloud county, Kan., against plaintiff in error, Lizzie J. Townsdin, alleging that said plaintiff in error was the tenant of defendant in error of a tract of land in said county, described in the complaint; that the tenancy had begun in 1880, by William H. Townsdin, the husband of Lizzie J. Townsdin, and had continued from year to year until April, 1889, when said William H. Townsdin died, leaving his widow, Lizzie J. Townsdin, in possession of said premises; she continued to occupy them until the fall of 1892, when a notice was given to terminate the tenancy from year to year, and on March 2, 1893, she was notified to quit, but, failing to do so, this suit was begun to recover possession of said premises. Lizzie J. Townsdin, the defendant below, filed her verified answer, in which she denied that she was the tenant of said plaintiff, Margaret Townsdin, but averred that she and her husband, William H. Townsdin, went into the possession of said land in 1880, and had ever since held it under an agreement between her husband, William H. Townsdin, and the plaintiff in said action, whereby, in consideration of the annual payment of $50 and taxes during the life of said Jargaret Townsdin, the land was to belong to the said William H. Townsdin; that they made valuable and lasting improve. ments on said land under said contract, and that by virtue of said contract she and her son, William I. Townsdin, as the sole heirs at law of William H. Townsdin, deceased, were entitled to said premises. The case

was thereupon certified to the district court, under paragraph 4853, Gen. St. 1889, and was there tried before a jury. A verdict was found for the plaintiff, Margaret Townsdin, and judgment rendered thereon that she have restitution of the premises, and that she recover her costs. From this judgment proceedings in error are brought to this court. It appears from the evidence that William H. Townsdin, the husband of Lizzie J. Townsdin, was a son of the plaintiff below, Margaret Townsdin, and went upon and made his home on said land until his death, under some agreement or understanding, not in writing, with the plaintiff and her husband; and after his death his wife was permitted to remain until some family trouble arose, when proceedings were instituted to remove her therefrom.

The principal question in this case, as presented by the briefs for plaintiff and defendant in error, respectively, is: In an action of forcible detainer, brought originally in a justice court, and certified to the district court, under section 4853, can a judgment for dispossession be rendered against a defendant who claims title? Or as put by the plaintiff in error: "Will the action of forcible entry and detention lie, when the question of adverse title or interest is fairly raised by the pleadings and evidence? the plaintiff in error insisting that the action of forcible entry and detention will only lie where no question of title is raised.” We do not think that this contention can be sustained. Section 7 of the "Justices' Act," which provides for certifying cases from a justice's court to the district court, where title or boundary of land is in dispute, provides “that when the case shall be taken to the district court, said case shall be docketed and thereafter proceeded with in the district court as if originally commenced therein.” It would be a strange construction of law to hold that because a tenant saw fit to set up any pretended claim of title, without any reason or justice in fact, such claim of itself would defeat the action of forcible entry or forcible entry and detainer. This identical question was raised in the case of McNamara v. Culver, 22 Kan. 661. Brewer, J., rendering the opinion of the court in that case, says: "A final objection is that the defendant was refused a second trial, as is authorized in actions for the recovery of real property. In this action a sworn answer, setting up title, was filed, and thereupon the justice certified the case to the district court, where it was tried. The argument of counsel is, in substance, that, as the article in the General Statutes providing for proceedings in forcible entry and detainer applies only to the justice's, and not to district, courts, and as the provision for certifying cases to the district court declares that the case so docketed shall be proceeded with in the district court as if originally commenced therein, it must proceed as an action for the recovery of real property, in which action two trials are a matter of right. We cannot agree with counsel. The action of forcible detainer is different from the action of ejectment, or for the recovery of real property, as it is styled in the Code. Evidence sustaining the latter will not necessarily sustain the former. More facts are required in the one than in the other. Now, the district court is one of general original jurisdiction. A provision for certifying the case from the justice to the district court changes the forum, but does not change the action. The same proof must be made in the latter as would have been required in the former court, and the same relief may be obtained. It it were not so, an unscrupulous tenant might hold possession in defiance of his landlord, and without giving any security for many months. We do not so understand the statute." See, also, Railway Co. v. Atchison, 43 Kan. 529, 23 Pac. 610.

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The plaintiff in error also complains that the court below erred in refusing to give to the jury the three special instructions asked for. These instructions are all based upon the two-years statute of limitations, and we do not think that the position that this statute does not apply to a tenant from year to year, before the tenancy is terminated by notice to quit, needs any citation of authorities or argument.

Complaint is made, also, of instructions 3, 4, 5, 6, and 7, as given by the court; and we think that these instructions give substantially and fairly the contention of the respective parties, and there is nothing in any of them of which the plaintiff in error can complain. We doubt if the defendant would have been entitled to recover had she shown “a clear, definite agreement and understanding between plaintiff and defendant's husband or herself, as claimed by her”; the same not being in writing, and certainly extending over more than one year's duration, if any such agreement or understanding ever existed. See Gen. St. 1889, c. 43, § 5. There was certainly no error therein of which the plaintiff in error can complain. Taking all the evidence in this case, and giving it the construction most favorable to the plaintiff in error, we do not think it would show any color of title in her, or such a state of facts as would constitute any defense to the action of the plaintiff below. The judgment of the court below will be affirmed. All the judges concur.

2. A., B., C., and D. enter into an agreement to prevent competition at a sheriff's sale of rea. estate, under which A. is to bid off the land at a price not to exceed $4,000. It is then to be decided by chance which of the four is to have the land at $4,000, and the difference between the price it is bid in for and $1,000 is to be divided among the four. A. bid in the land at $3,510. The four then met, and drew lots fo the land. It fell to B. C. then offered B. $1,200 for it, which was accepted, and C. paid B. $567.50, that sum being $200 bonus offered B., added to the difference between the sum the land was bid off for and $1,000, less C.'s share of said excess. B. immediately paid to A. and D. their share of said excess. The sale was set aside on account of such illegal combination. A. and B. refunded to C. the amounts of their profits in the transaction, but D. refused to do so, and C. brought a suit against B., setting up a parol purchase of the land, a payment of $567.50 thereon, the rescission of the contract of sale, and the failure return $122.50 of said payment. Hild, that such transactions were all connected, and grew immediately out of a contract that was illegal and contrary to publie policy, and that no action can be founded thereon.

(Syllabus by the Court.)

Error from district court, Dickinson county; James Humphrey, Judge.

Action by G. G. Hoffman against I. S. Hallam. Judgment for plaintiff. Defendant brings error. Reversed.

J. H. Mahan, for plaintiff in error. Stanbaugh & Hurd, for defendant in error.

WELLS, J. I. S. Hallam, David Matteson, G. G. IIoffman, and J. P. Morley entered into an arrangement to prevent competition at a sheriff's sale of real estate, under which David Matteson was to bid off the land at a price not to exceed $1,000. It was then to be decided by chance which of the four should have the land at the $1,000, and the difference between the price it was bid in for and the $1,000 was to be equally divided among the four. Matteson bid in the land at sheriff's sale at $3,510. The parties then met, and drew lots for the land, and it fell to Hallam, the plaintiff in error, Before separating, Hoffman, the defendant in error, and the plaintiff below, proposed that he would take the land at $1,200, which Hallam, under the advice of Matteson, with whom it developed at this point he had pooled his issues, accepted. Hallam then paid, by check, $567.50, that sum being the difference between the amount for which the land was bid off ($3,510) and $1,200, the sum at which Hallam had agreed to take it, less $122.50, Hoffman's one-fourth of the profits under the original contract. This sum was immediately divided up, Hallam and Matteson each receiving $122.50 in addition to the $200 bonus paid by Hoffman, and Morley getting $122.50, one-fourth of the $190. The sale was set aside on account of said illegal combination. Hallam and Watteson refunded to Hoffman their profits in the transaction, $145, but Morley refused to refund his $122.50. Thereafter this action was brought by Hoffman, in the district

(5 Kan, App. 303)

HALLAM v. HOFFMAN. (Court of Appeals of Kansas, Northern Depart

ment, C. D. March 22, 1897.) New TRIAL-FILING MOTIOS-ILLEGAL CONTRACT

--ACTION FOR BREACH. 1. “Thereupon the defendant filed his motion for a new trial” means immediately after, and upon the same day of, the occurrence last before cited.

think, was error. After carefully reviewing all the evidence and pleadings, we are forced to the conclusion that it was all one transaction, intimately connected, and no part of it but what grew immediately out of the illegal act. The first principie laid down in Armstrong v. Toler, 11 Wheat. 258, is as follows: “Where a contract grows immedi. ately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. So, if the contract be in part only connected with the ille. gal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it." And a careful consideration of all the cases cited in no way disputes or contradicts this principle. In McBlair v. Gibbes, 17 How. 236, the United States supreme court says: “It may be admitted that even a subsequent collateral contract, if made in aid and in furtherance of the execution of one infected with illegality, partakes of its nature, and is equally in violation of law." The judgment of the district court will be reversed, and judgment ordered for the plaintiff in error (the defend. ant below).

McELROY, J., concurs. MAHAN, P. J., having been of counsel, not sitting.

court of Dickinson county, Kan., claiming in his petition that he had made an oral agreement with said defendant, Hallam, for the purchase of certain real estate, and had paid, as part consideration therefor, $567.50; that the defendant, being unable to make a title thereto, rescinded said sale, and had paid back all of said $567.50, except the sum of $122.50; and praying judgment for said lastmentioned sum, with interest and costs. To this petition the defendant answered-First, by a general denial, and, second, by a recital of the facts substantially as hereinbefore set forth. The plaintiff replied by generally denying all the allegations and aver. ments set up in said second count of defendant's answer. Trial was had to the court at its February term, 1895, and it found the issues for the plaintiff. A motion for a new trial was duly made, overruled, exceptions saved, and the case brought to this court for review.

We are first met by an objection interposed by the defendant in error to a review of the alleged errors in this action, for the reason that the record does not affirmatively show that a motion for a new trial was filed within three days after the judgment of the trial court was rendered, and for that reason it must be presumed that the motion for a new trial was overruled, because it was not filed in time, and that all errors occurring during the trial were waived. The record shows that the trial of this case was commenced on the 13th day of February, 1895; that, upon the close of the testimony, the court found the issues for the plaintiff, to which finding the defendant excepted at the time, and thereupon filed his motion for a new trial, and thereafter, to wit, on the 26th day of February, 1895, said motion for a new trial came on to be argued, and was argued by counsel, and the court, having heard the same, denied the said motion, to which order denying said motion the defendant excepted. We think that the record does affirmatively show that the motion for a new trial was filed on the 13th day of February, 1895, or at least on the same day the trial was concluded. Under the authority of Hill v. Wand, 47 Kan. 340, 27 Pac. 988, “thereupon” is construed as "an adverb of time, and held to mean without delay or lapse of time." We think that this definition of the word is in harmony with the best authorities and common usage.

There is very little, if any, conflict of testimony in this case. The facts are substantially admitted by both parties, and the only question is whether, from these facts, the plaintiff below was entitled to recover. The illegality of the arrangement to prevent competition is admitted by the defendant in error, but he contends that there was a new contract founded upon an independent consideration, under which the plaintiff below was entitled to recover, and this view was concurred in by the trial court. This, we

(5 Kan. App. 300) TDAGUE et al. v. FIRST NAT. BANK OF

SALINA et al. (Court of Appeals of Kansas, Northern Depart

ment, C. D. March 22, 1897.) NATIONAL BANKS-USURI-RECOVERY OF PENALTY

-CAUSE OF ACTION. 1. Under the Revised Statutes of the United States (section 5198), which authorize the person paying usurious interest to a national bank to recover twice the amount paid, several of the joint makers of a note on which illegal interest is paid by such parties individually cannot unite in one action to recover such penalty.

2. The statute confers upon the parties separate rights. That they have paid equal amounts cannot change the rule. The cause of action accrues to the one paying the unlawful interest, and to each one making such payments. There is no cause of action to the makers of the note on which usurious interest is paid. The cause of action arises when the unlawful payment is made, and to each of the ones making such payments.

(Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by Clara W. Teague and Matilda Ober against the First National Bank of Salina, Kan., and Drusilla Daily. Judgment for defendants, and plaintiffs bring error. Affirmed.

Hutchinson & Banks and C. A. Hiller, for plaintiffs in error. Bond & Osborne, for defendants in error.

MCELROY, J. On June 4, 1891, Clara W. Teague and Matilda Ober filed their amend.

ed and supplemental petition, substantially the same, and the said sum of, to wit, $55.as follows: "(1) First cause of action against 10, and interest thereon from said 26th day the defendants herein: Allege and show that of January, 1891, is now due and wholly unthe defendart bank is, and was during all paid. These plaintiffs, Clara W. Teague and the transactions with it hereinafter referred Matilda Ober, further aver that a former peto, a national banking association, formed tition was filed herein as aforesaid, in Januand existing under the laws of the United ary, 1891, wherein the plaintiffs named in this States, and especially under title'62, 'Nation- petition, and said Drusilla Daily, now namal Banks,' Rev. St. U. S. 1878 (20 Ed.), and ed as defendant herein, were the plaintiff's amendments thereto, as a corporation, and therein, and that the allegations in said foris, and during all the time and transactions mer petition were in all respects true, as hereinafter mentioned was, located and do- therein stated, and the same are now true, ing business in the city of Salina and state except the other and additional matters ocof Kansas; and the defendant bank, acting curring since the said former petition was as a national banking association as afore- filed, and now set out in this supplemental said, did and performed the acts, matters, and amended petition; that since the filing and things hereinafter alleged as having of said former petition the said Drusilla been done and performed by the defendant Daily, on her motion therefor, was permitbank. And the plaintiffs further allege: ted, by order of the court, to withdraw from That on the 9th day of August, 1889, the this case, and to dismiss the same, so far as plaintiff and said Drusilla Daily jointly it concerned any claim of herself, individmade, executed, and delivered to the said ually, against the said defendant bank, on the First National Bank, defendant, their the matters set forth in said former petition promissory note in writing for the sum of filed in this case. And these plaintiffs aver $888.93, payable at Salina, Kansas, to the that said Drusilla Daily refused to join in said defendant bank or order, ninety days the further prosecution of this action against after date, for money loaned them by said said defendant bank, and that she was at bank, which note and money is now fully the time of said former petition, and now is, paid. That at the date aforesaid the rate a party united in interest with those plainof interest was fixed by the laws of the tiffs, Clara W. Teague and Matilda Ober, said state of Kansas, and the highest rate and entitled individually to a one-third share, of interest allowed by law in said state of interest, and part of the money claimed and Kansas, under the statute law of said state sought to be recovered in this action. And in such cases made and provided, was ten these plaintiffs further aver that since the per centum per annum; and no different filing of the said former petition, to wit, on rate of interest was then limited or allowed March 1, 1891, the defendant Drusilla Daily by the laws of said state for banks of issue and said defendant bank, by some agreeorganized under the laws of said state. That ment in writing made and entered into bethe plaintiffs, Clara W. Teague and Matilda tween themselves without notice or the Ober and Drusilla Daily (now defendant knowledge of these plaintiffs, the exact naherein), on the date aforesaid jointly paid ture and scope of which these plaintiffs are the defendant bank, and the defendant bank in ignorance, and have not the possession knowingly and wrongfully demanded and or control thereof, and for that reason canreceived from the plaintiffs, Clara W. not allege and set forth the same and atTeague, Matilda Ober, and Drusilla Daily tach the same hereto as a part hereof; but (now defendant herein), interest in advance they allege the same to be, in substance, on said note for the time it had to run, a that the said Drusilla Daily discharged and greater rate of interest than was allowed as released said bank from any and all further aforesaid by the law of the said state of claim or liability for her one-third part of Kansas, to wit, the rate of twelve per cen- the claim, indebtedness, and subject-matter tum per annum, and in all the sum of $27.- of this suit alleged in said former petition, 55; and the defendant bank did then and and that the same was done by and between there wrongfully appropriate said sum of these defendants aforesaid by consideration, $27.55 as and for a payment of the interest confederation, and collusion between them, it so demanded and received on said note as with a fraudulent intent and purpose by aforesaid, and ever since has wrongfully ap- them to cheat these plaintiffs of their right plied and so made use of the said sum of of action and enforcement of their claim al$27.5), against the statute of the United leged against said defendant bank. By reaStates in such cases made and provided. son of the premises aforesaid an action has That the plaintiffs, Clara W. Teague, Matil- accrued to the plaintiffs to have and recover da Ober, and Drusilla Daily (now defendant of said defendant bank two-thirds of twice herein), on the 26th day of January, 1891, the amount of said sum of $27.55 so paid and made demand on said defendant bank to received by the defendant bank as interest pay twice said sum of $27.55, to wit, $55.10, on said note as aforesaid, to wit, the sum of the same being twice said sum of $27.55 so $36.75, and interest thereon from January wrongfully received, appropriated, and re- 26, 1891, at 7% per annum; and the plaintained by the defendant bank. The said tiffs claim two-thirds of twice said sum of defendant bank refused and neglected to pay $27.55, to wit, $36.75, and interest thereon

from January 26, 1891, at 7% per annum, examination of one question: Did the plainand bring this action to recover the same." tiffs show such a joint interest in the subThis petition contains 16 causes of action. | ject-matter and relief demanded as to entiEach of said causes of action was, in sub- tle them to maintain a joint action? Upon stance, the same as the one herein set out. an examination of the evidence in this case, The defendants in the court below filed a de- we find that the plaintiffs in error made no murrer to this petition, which was sustained joint payment of interest. They had.no by the court, and thereupon the plaintiffs common fund, and the several payments amended by striking out the following words: were made by each one, individually, from "For money' loaned them by said bank, which her individual money. Rev. St. U. S. $ note and money is now fully paid.” And after 5198: “In case the greater rate of interest the petition was so amended the defendants has been paid, the person by whom it has filed a demurrer thereto, which was by the been paid, or his legal representatives, may court sustained. And thereupon the plain- recover back, in an action in the nature of tiffs amended by substantially inserting the an action of debt, twice the amount of inwords formerly erased. The defendant terest thus paid from the association taking bank filed its answer to the amended and or receiving the same: provided such action supplemental petition herein, as follows:- is commenced within two years from the "First. That it denies each and every alle- time the usurious transaction occurred." It gation therein contained, except the allega- will be observed that the penalty for illegal tion that this defendant is a national bank- interest is recoverable only by the person ing corporation. Second. And, further an- by whom it has been paid, and the liability swering, said defendant the First National of the receiving bank is solely to such perBank of Salina, Kansas, says that said plain- son.

One of the joint makers of a note on tiffs ought not to have and maintain their which illegal interest is charged cannot resaid action, because it alleges that said plain- cover the penalty from the bank, where the tiffs have no common or joint interest there- illegal interest was paid by the other maker. in, and that whatever payments of money, This question was decided by the supreme as interest or otherwise, were made by said court of this state in Bank v. Rowley, 52 Kan. plaintiffs, were made severally and individ- 394, 34 Pac. 1019. Johnston, J., delivering the ually by plaintiffs and not jointly. For re- opinion, said: “The liability, however, is to ply, the plaintiffs filed a general denial. The the person who paid it. The penalty can case came on for trial on December 13, 1892, only be enforced in the manner and under upon the issues joined, before the court and the circumstances provided in the act of jury. The plaintiffs in the trial court in- congress, which provides that the right of troduced their evidence, and rested, and recovery rests only in the person by whom thereupon the defendant bank interposed its it has been paid, or his legal representademurrer to said evidence for the reasons: tives. From the evidence it appears that First, no cause of action is proven; second, Rowley and Groves were joint makers of the the evidence shows that the plaintiffs have note upon which the illegal interest was no joint interest in the subject-matter of the charged and paid. While the loan was made action or in the relief demanded; third, the to Rowley, both of them were liable on the cause of action alleged is not proven. The note; and the bank, at its option, might have trial court sustained the demurrer, and ren- brought an action against one or both of dered judgment for the defendants in error them. The court found that Groves, not and against plaintiffs in error. The plain- Rowley, paid the illegal interest, and that tiffs in error excepted to the ruling of the the payments were made by Groves out of court, and filed their motion for a new trial, his own money. The money having been which was overruled, and bring the case paid by him, the liability arises in his favor, here for review.

and no recovery can be had except by him An examination of the record in this case or his legal representatives.” Under the evidiscloses, substantially, the following facts: dence in this case, showing separate payThat in 1887 the plaintiffs in error borrowed ments, the statute confers upon the parties of the defendant bank of the city of Salina separate rights. That they may have paid about $5,000. That the same was borrowed equal amounts cannot change the rule. The at three different dates. At the time the cause of action accrues to the one paying money was borrowed, Drusilla Daily, Ma- the unlawful interest. That one alone who tilda Ober, and Clara W. Teague gave their makes the payment, or his legal representajoint notes, as evidence of the indebtedness. tives, can recover. There is no cause of It seems that these notes matured from time action to the makers of the note on which to time, 30 days from date. At the maturi- usurious interest is paid. The cause of acty of these notes these parties would each tion arises when the unlawful payment is pay, from their separate and individual made, and to the one making such payment. funds, one-third of the amount of interest, See Durein v. Pontious, 34 Kan. 353, 8 Pac. on a basis of 12 per cent., and give their joint 428, and cases there cited. The judgment notes for the principal of such indebtedness. of the trial court will be affirmed. All the The determination of this case involves the judges concurring.

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