Giltenan v. Lemert

13 Kan. 476

• Court: Supreme Court of Kansas
• Decided: July 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action to quiet title to certain real estate. Both parties by their pleadings claimed to own the property, and to have the right of possession thereto. A trial was commenced in the court below before the court and a jury. The plaintiff below (who is also plaintiff in error,) introduced parol evidence showing that he was in quiet and peaceable possession of the property. He also introduced in evidence a quitclaim deed to himself for the land, executed August 3d, 1867, by one Gesso Chouteau, a half-breed Osage Indian. He also introduced in evidence a patent for the land issued June 10th, 1870, by the government of the United States to said Chouteau. This patent was issued under the provisions of article 14 of the treaty with the Osage Indians of September 29th, 1865, (14 U. S. Stat. at Large, 689.) When all this evidence was introduced the plaintiff rested his case. The defendant then demurred to the evidence, and the court below sustained the demurrer, and rendered judgment for the defendant. And of this ruling the plaintiff now complains.

We are inclined to think that the court below erred — that the case should not have been taken from the jury. A party in the quiet, peaceable and rightful possession of real estate, claiming title thereto, has such an interest therein, although his title may be ever so defective, that he may quiet his title and possession as against any adverse claimant whose title is weaker than his, or who has no title at all. (Gen. Stat., 747; Code, § 594.) Now according to the evidence, if the plaintiff did not own this property, then Chouteau owned it. There was not a particle of evidence tending to prove that any one else owned it. There was no evidence tending to show that the defendant had the least interest in the property. Hence it would have been proper for the jury to have found that the plaintiff held the property peaceably, quietly, and rightfully, under Chouteau, although possibly the legal title may still be in Chouteau. If Chouteau was satisfied to allow the plaintiff to hold possession of the property, and to claim title thereto under said quitclaim deed, no one else could complain. Except as against Chouteau, or some other person rightfully claiming under him, the plaintiff’s title was and is sufficient. It will stand against the balance of the world. This case differs widely from the case of Wood v. The M. K. & T. Rly. Co., 11 Kas., 323. In that case the plaintiff was merely a trespasser upon government land. In this the plaintiff is neither a trespasser, so far as the evidence shows, nor is he located upon government land.

The judgment of the court below must be reversed, and cause remanded for further proceedings.

All the Justices concurring.