Kemple v. Hilmore

72 P. 1100, 66 Kan. 810, 1903 Kan. LEXIS 192

Opinion

Per Curiam:

This is essentially a controversy over a boundary line. The defendants in error have unquestionably a good title to the disputed tract of something less than three acres, covered by overlapping claims, and should prevail, unless plaintiff in error is entitled to defeat them by reason of claiming under a sheriff’s deed made in a partition suit, on the theory that the defendants in error were bound by the proceedings in said suit and that the descrip tion in such deed includes the tract in controversy. It is true that one of the defendants -in error was a party to the partition action, but the others were not. Moreover, the description in the sheriff’s deed of the property conveyed by it,' following the description in the proceedings upon which it was based, is “the south twenty-four (24) acres, more or less, out of the southeast quarter” of a certain quarter-section. A tract containing twenty-four acres, taken in the form of a parallelogram from the south side of this forty-acre tract, would include the ground in controversy. But as the exact boundaries of the land intended to be conveyed by the sheriff’s deed were only attempted to be indicated by the acreage stated, the fact that this is .qualified by the words “more or less” may be deemed to suggest that the actual boundary line was purposely left indefinite, the description to be supplemented by physical boundary marks, such, for instance, as the hedge' fence which stood on the south line of the tract in dispute, and, as defendants in error claim, formed a part of the north boundary of the land really covered by the sheriff’s deed.

The judgment will be affirmed.