Holmden v. Janes , 42 Kan. 758 ( 1889 )

Opinion by

Clogston, C.:

The plaintiff in error now claims that this judgment is erroneous, upon two grounds: First, that the judgment was for the entire tract of land, when the plaintiff below only claimed and proved ownership of the undivided three-fourths; and second, that by reason of his contract with James R. Greer, and the subsequent contract with Joseph D. Greer to carry out the former contract, and the fact that after such contract he (plaintiff in error) purchased Janes’s title and interest, paying full value therefor, and thereafter, with, the knowledge of Greer, made improvements upon the land, that by reason of these facts he has an equitable title and interest in the land paramount to the rights of plaintiff Janes. In answer to this claim the defendant in error insist» that the contract made with James R. Greer was entirely destroyed by reason of the foreclosure proceedings by the A. T. & S. F. Rld. Co., and in that sale all the rights of Greer, and the rights flowing through Greer were extinguished, and that the contract made by Joseph D. Greer to carry out that contract afterward was without consideration, and therefore void.

We are inclined to the former of these views. There is no serious contention but that this judgment was erroneous as to the undivided one-fourth of the land, and as to that the plaintiff below had no right, and the court below could not render judgment for that fourth; and in that respect the judgment was wrong. It is true that the proceedings of the A. T. & S. F. Rid. Co. to foreclose that contract against Fielding Johnson and son, and Greer extinguished whatever claim Janes and Holmden had to the land. That contract was not of record, and there was nothing to notify the company that they claimed an adverse interest to Greer; and therefore, perhaps they were not necessary parties to that suit. After the land was purchased by Joseph D. Greer, he agreed to carry out that old contract made by his father. This he had a right to do. His father had received $190, and a piece of land had been turned over to him under that contract; and when Greer made this contract with Janes and Holmden, and permitted Holmden to purchase Janes’s interest therein at its full value, in good faith, relying upon this contract with Greer, and thereafter made valuable improvements upon the land, with Greer’s knowledge, these facts we think would remove this contract from the statute of frauds, and was binding upon Graves and binding upon Janes, who had knowledge of the contract. It is claimed that there is some evidence showing that Graves never consented to this arrangement, but we think the evidence is overwhelming that he did agree to this contract, and that he would carry it out; but if he did not, still we think he would be bound by the fact that Holmden was holding the adverse possession of the land. He knew that Holmden was in possession, and with this knowledge he was bound to know at the time he purchased the land of Holmden’s rights, whatever they may have been; and as to Janes, the defendant in error, there is no pretense but that he had full knowledge of the entire facts.

We are therefore of the opinion that the judgment of the court below was erroneous, and recommend that the judgment be reversed, and the cause remanded for a new trial.

By the Court: It is so ordered.

All the Justices concurring.