Kan.]

PERRINE v. MAYBERRY.

title, the wife refused to join her husband in conveying the 80 acres to M. Held, that a court of equity has the power to and will enforce a completion of the alienation, and enforce a specific performance of the contract by P. and wife.

(Syllabus by the Court.)

Error from district court, Harvey county; HOUK, Judge.

Bowman & Bucher and Clarence Spooner, for plaintiff in error. Ady & Henry and Green & Shaver, for defendant in error.

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HORTON, C. J. Andrew J. Mayberry brought his action against John A. Perrine, and Emeline, his wife, to compel them to specifically perform an alleged contract for the sale of a tract of land. The petition recites, among other things, "that heretofore, to-wit, on or about the fourteenth day of September, 1871, said defendant John A. Perrine, then being married to the defendant Emeline Perrine, entered into a written contract with the Atchison, a corporation duly organized under Topeka & Santa Fe Railroad Company, the laws of the state of Kansas, by the terms of which contract said John A. Perrine agreed to purchase of said railroad company a certain piece and parcel of land lying and being in the county of Harvey and state of Kansas, and described as follows, to-wit: The south-east quarter of section number one, in township number twenty-four, south of range number one, east of the sixth principal meridian, containing one hundred sixty acres, more or less, according to the United States surveys; that said written contract is not in the possession or within the control or reach of this plaintiff, and it is impossible for him to procure the same or a copy thereof; that by the terms and conditions of said contract the said John A. Perrine was to pay for said land the sum of in annual installments, the last payment to be made upon the fourteenth day of September, 1882; and that upon the full payment of said sum and amount of money, with the interest and charges thereon, said railroad company agreed to execute and deliver to said John A. Perrine a deed of general warranty, with the usual covenants therein for said land; that on or about the twenty-eighth day of January, 1874, the said John A. Perrine and Emeline Perrine, having ascertained that they would not be able to meet the payments as they would become due by virtue of said contract, proposed to this plaintiff that if he would pay the said John A. Perrine the sum of one hundred seventy-five dollars, and afterwards pay one-half of all subsequent payments falling due to said railroad company for the purchase money of said premises, that the said plaintiff should be considered and held to be the owner of the west one-half of said quarter section of land, and that when such payments were all made, and said railroad company should in pursuance of their contract with said John A. Perrine execute to him a deed conveying to him the legal title to said premises, the said defendants should immediately convey to this plaintiff, by a deed of general warranty with the usual covenants, the said west one-half of said premises; that this plaintiff accepted said proposition, and thereupon paid to said John A. Perrine the sum of one hundred seventyfive dollars; that, in pursuance of said contract, the plaintiff in the month of September, in the years of 1874 and 1875 and 1876 duly paid to said defendant, John A. Perrine, one-half of all the money falling due to said railroad company under said Perrine's contract of purchase from said comday of September, 1877, at the instance and pany; that on or about the request of the said defendants, this plaintiff made a full settlement for the west one-half of said quarter section of land, by then paying to said Perrine the sum of three hundred twenty-five dollars or thereabouts, as nearly as plaintiff can recollect, the same so paid being the full amount of one-half of all the payments yet to become due to said railroad company upon said contract of purchase from said railroad company to said Perrine, and that in consideration of said payment so made, and the payments made prior thereto by this plaintiff to said defendant, the defendants then verbally agreed with this

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plaintiff that they would make punctual payments of all sums yet to fall due to said railroad company, at the time the same should become due, and that they would, when said railroad company should deed said land to said John A. Perrine, make to this plaintiff a good and sufficient warranty deed, with the usual covenants therein."

At the trial, a jury was impaneled to answer certain questions of fact at issue in the case. Among other things, the jury found specially that Mayberry entered into an agreement with John A. Perrine, and Emeline, his wife, jointly, by the terms of which the defendants agreed to convey to Mayberry the land in controversy for the sum of $681.88; that Emeline Perrine made the proposition to Mayberry to sell him this land at his first visit to Kansas, when at Perrine's house, in January, 1874; that Mayberry, after making such agreement, and in pursuance thereof, went into the immediate, actual, and exclusive possession of the land, with knowledge and consent of the defendants; that Mayberry paid the defendants the money required under the agreement, and also performed all of its conditions; that Mayberry has been in the continuous and undisturbed possession and occupation of the land, with the knowledge and consent of the defendants, ever since the making of the agreement; that Mayberry has made valuable and lasting improvements upon the land, consisting of buildings, orchards, trees, hedges, etc., of the value of $1,400, with the knowledge and consent of the defendants; that John A. Perrine, and Emeline, his wife, abandoned the use and occupancy of the land in controversy, after the making of the agreement above stated, and in pursuance thereto; that Mayberry paid the defendants, to be used by them in the purchase of the land from the railroad company, the sum of $684.80. These findings were approved and adopted by the trial court, and, upon the evidence, that court also made the following special findings of fact: "That the defendants jointly consented to the alienation of the premises in question, and jointly put plaintiff into possession thereof, and themselves ceased to occupy the premises as a homestead; and have not so occupied the same, or asserted any right to the possession thereof, adverse to the claim and occupancy of plaintiff, since putting him into possession."

From the foregoing findings, and the evidence upon which they are based, it is very clear that there was such a joint consent of husband and wife at the time the contract for the land was made, and during the time that the plaintiff below was holding possession thereof, and making lasting and valuable improvements thereon under his contract, and during the time that he was paying for the same, that the defendants thereby so alienated the land in equity that a court of equity has the power to and will enforce a completion of the alienation, by enforcing a specific performance of the contract. Edwards v. Fry, 9 Kan. 417. It is claimed, however, that the verbal agreements entered into between Mayberry and the Perrines were all merged into a written contract, executed January 8, 1884, and signed by Andrew J. Mayberry and John A. Perrine; and that as Emeline, the wife of John A. Perrine, never signed the written contract, the contract was and is absolutely void, as the same concerns the homestead of the Perrines.

The defense was that Andrew J. Mayberry and John A. Perrine were the sole parties to the contract about the land. The writing of January 8, 1884, was attached to one of the answers, and was before the trial court, as evidence that Emeline Perrine was not a contracting party. On the other hand, the evidence of Mayberry was to the effect that Emeline Perrine joined with her husband in selling the land; that she did not sign the written agreement of January 8, 1884, because of advice given at the office of the scrivener that it was not necessary for her to do so. In substance, the evidence of Mayberry established that the writing of January 8, 1884, did not embrace the contract between himself and the Perrines. The jury adopted the evidence of Mayberry, and the trial court found the issue upon this point against the Perrines.

Again, neither the statutes nor the constitution requires that the alienation of a homestead, with the joint consent of the husband and wife, must be in writing. Of course, the joint consent must exist before any voluntary alienation of the homestead. In this case, there was the express joint consent of the husband and wife. Section 9, art. 15, State Const.; section 1, c. 38, Comp. Laws 1879. Upon that joint consent the purchase money was paid, possession was taken, lasting and valuable improvements made. Mayberry cannot now be robbed of the fruit of his toil and outlays by the refusal of Mrs. Perrine to sign the deed. See Overman v. Hathaway, 29 Kan. 434; Newkirk v. Marshall, 35 Kan. 77, 10 Pac. Rep. 571; Harkness v. Burton, 39 Iowa, 101.

We have examined the other questions presented, but the allegations of error stated are not sufficient to reverse or modify the judgment.

Therefore the judgment of the district court will be affirmed.

(All the justices concurring.)

(37 Kan. 287)

GAFFORD and another, Guardian, etc., v. DICKINSON, Adm'r, etc., and others.

(Supreme Court of Kansas. October 8, 1887.)

ADMINISTRATOR-FRAUD-ACTION AGAINST-PLEADING-JURISDICTION.

Where the heirs of a deceased person, after the estate has been finally settled in the probate court, bring an action in the district court against the former administrator and others, and set forth in their petition that the defendants, through conspiracy and fraud, procured fraudulent judgments and orders to be entered in the probate court, and committed other wrongs, whereby they cheated and defrauded the heirs out of a large proportion of the estate, and the plaintiff had no knowledge of such fraud and wrongs until after the final settlement in the probate court, and prayed to have the aforesaid judgments and orders set aside, and for other relief, held, that the petition states a cause of action, and only one, and that the district court has jurisdiction of the same.

(Syllabus by the Court.)

Error from district court, Brown county; DAVIS MARTIN, Trial Judge. W. D. Webb, for plaintiffs in error. W. W. Guthrie, C. W. Johnson, James Falloon, and Ira J. Lacock, for defendants in error.

VALENTINE, J. The only questions involved in this case arose upon a demurrer to the plaintiffs' petition. The petition states, among other things, as follows:

On November 5, 1879, William Boyd Dickinson died, leaving as his heirs a wife, Mary Dickinson, now Mary Gafford, and one child, Samuel Boyd Dickinson. He also left a large amount of property, both real and personal. He also left three brothers, Samuel P. Dickinson, Martin Boyd Dickinson, and John C. Dickinson, and one sister, Susan C. Dickinson. After the death of William Boyd Dickinson, Samuel P. Dickinson, Martin Boyd Dickinson, and Susan C. Dickinson, who are now the defendants in this action, entered into a conspiracy to cheat and defraud the said Mary Dickinson, who is now the plaintiff in this action, and Samuel Boyd Dickinson, her minor son, out of their interest in the aforesaid estate of William Boyd Dickinson, and, in pursuance thereof, it is alleged: Samuel P. Dickinson "came to the plaintiff, and represented to her that he was her friend, and reminded her that he was the brother of her deceased husband, and told her that the estate was large, and that she was not accustomed to doing business; she could not settle up the estate, and proposed to her that he would do it for her. He further stated to her that he understood all about the business, having come out of it but a short time before, and that he could and would guard it for her from absorption, and protect her interest and that of her child from being wasted or obtained by anybody, and would preserve it for them; that this plaintiff, relying on these and other protestations and representations, and reposing great

trust and confidence in the said Samuel P. Dickinson, and believing that he would carefully guard and protect the interest of the said estate, and would preserve the same for her and her said child, who are the only heirs of the said William B. Dickinson, agreed to receive his counsel, and be governed by his advice in regard to all matters pertaining to said estate; that she was stricken with grief, and unaccustomed to doing business, and naturally looked for some one to rely upon; and that the defendant Samuel P. Dickinson, taking advantage of her forlorn and desolate situation, and the relation of brother to her deceased husband, gained her entire confidence, and she relied implicitly upon his friendship and integrity, and actually surrendered to him the management and control of her interest and the interest of her said minor child."

In pursuance of the aforesaid conspiracy, the following things transpired, and were had and done: No administrator was appointed until June 15, 1881, when Martin Boyd Dickinson was appointed; and on June 17, 1881, John C. Dickinson was appointed guardian for the minor son, Samuel Boyd Dickinson. Martin Boyd Dickinson failed and refused, as administrator, to make an inventory of a large proportion of the property belonging to the estate, and made a false inventory of the remainder. He also permitted a large amount of false and fraudulent claims to be allowed against the estate, and in favor of Samuel P. Dickinson and Susan C. Dickinson, and paid them from the estate. He also sold at private sale and conveyed to Samuel P. Dickinson, for himself and Samuel P. jointly, a large amount of the real estate belonging to the estate, at about one-third of its real value. The conspirators at the proper times fraudulently procured from the probate court all the necessary orders to enable the administrator to perform these acts.

"And this plaintiff further alleges that she did not discover any of the frauds above set forth until long after they were consummated, and all of them were discovered within the last six months by her; that all of the above and foregoing facts, matters, and things are the result of an agreement and conspiracy entered into between the defendants in this suit, for the purpose of cheating and defrauding said estate, and for the purpose of cheating and defrauding this plaintiff and her said ward and minor child, only heirs of the said William B. Dickinson, deceased, and that the entire administration of said estate is illegal and void for the reasons above set forth." A final settlement of the estate, by the administrator, with the probate court, was had on June 28, 1884, and the administrator was discharged.

"But that this plaintiff was not present at such settlement; that she was persuaded to stay away therefrom by the said Samuel P. Dickinson, he representing to her that her presence was unnecessary, and that he would attend to her interests there, and that she could not understand it in any event, and that, relying on him, the said Samuel P. Dickinson, and not then having discovered that he and the said Martin B. Dickinson were absorbing said estate, and cheating and defrauding the same, and still relying on him, the said Samuel P. Dickinson, to protect her interest at such settlement, and to protect the interest of her said son, she did remain away, and trusted everything, as she had done all through the said administration, to said Samuel P. Dickinson."

On October 13, 1884, Mary Gafford, formerly Mary Dickinson, was appointed guardian for her minor son, said Samuel Boyd Dickinson; and on June 27, 1885, she commenced this action in the district court of Brown county for herself, and as guardian and next friend of her said son. The plaintiff also alleges in her petition that the person who was probate judge when the foregoing proceedings were had is still the probate judge, and that he is a material witness in this case, and that she could not safely proceed to trial without his testimony. The plaintiff then prays in her petition that the entire administration of the estate, including all the proceedings had before the probate

court with reference to the estate, be set aside, and that a new administration be had; and for such other and further relief as she may be entitled to; and, in case such relief cannot be granted, then that she and her son may have judgment against Susan C. Dickinson for $1,554.57, and against Martin B. Dickinson and Samuel P. Dickinson for $30,000, and interest and costs.

To this petition the defendants demurred, on the grounds (1) that the district court had no jurisdiction; (2) that several causes of action were improperly joined; (3) that the petition did not state facts sufficient to constitute a cause of action.

The court below sustained this demurrer, and, to reverse this ruling, the plaintiff brings the case to this court.

We think the court below erred. The petition states a cause of action, and only one, and the district court has jurisdiction of the same. That the district court has jurisdiction, see the following cases: Shoemaker v. Brown, 10 Kan. 383; Musick v. Beebe, 17 Kan. 47; Markson v. Kothman, 29 Kan. 718, 723; Brenner v. Bigelow, 8 Kan. 497: Griffith v. Godey, 113 U. S. 89, 5 Sup. Ct. Rep. 383; Heward v. Slagle, 52 Ill. 336; Stong v. Wilkson, 14 Mo. 116; Jones v. Brinker, 20 Mo. 87; State v. Roland, 23 Mo. 95; Mitchell v Williams, 27 Mo. 399; Dillon v. Bates, 39 Mo. 292; Picot v. Bates, 47 Mo. 390.

It is true that in the exercise of jurisdiction by the district courts, in cases connected with the settlement of the estates of deceased persons, there are some limitations. Johnson v. Cain, 15 Kan. 532; Stratton v. McCandless, 27 Kan. 297; Kothman v. Markson, 34 Kan. 542, 9 Pac. Rep. 218. Generally, while the estate is in the course of settlement in the probate court, the district court will not exercise its jurisdiction; and this for the reason that the jurisdiction of the district court in such cases is equitable only, and the parties have a plain and adequate remedy in the probate court. The jurisdiction of the district court, in all cases like this, is merely equitable, and therefore it will generally refuse to exercise such jurisdiction in any case where the parties have another plain and adequate remedy. In this case, however, the settlement of the estate is no longer pending in the probate court. According to the records of the probate court the estate was finally settled about a year before this action was commenced, and therefore, unless the plaintiff now has a remedy in the district court, she has no remedy. According to the allegations of her petition, she was lulled into a belief of perfect security, and then defrauded by the very persons upon whom she relied for protection, and in whom she reposed confidence. She did not suspect fraud, and had no knowledge of the actual fraud that was committed upon her, until long after it occurred, and until long after the final settlement.

We think she is entitled to the relief which she now asks, and that she is entitled to obtain it in the district court. Fraud vitiates all things, even the most formal judgments; and the same may be set aside, or other proper relief granted, and this in the district court, unless some specific and adequate remedy is furnished by some other tribunal.

The judgment of the court below will be reversed, and cause remanded, with the order that the demurrer to the petition be overruled, and for such other and further proceedings as may be proper in the case.

(All the justices concurring.)

(37 Kan. 321)

REED, Ex'r, etc., v. HAZLETON.

(Supreme Court of Kansas. October 8, 1887.)

1. WILL-INSTRUMENT IN PART CONTRACT, AND IN PART TESTAMENTARY.

An instrument in writing may be a contract in one part thereof, concerning one piece of property, and in another part may be testamentary, in relation to other and distinct property.

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