Wise v. McAlpine

Supreme Court of Kansas

Wise v. McAlpine

121 P. 916, 86 Kan. 805, 1912 Kan. LEXIS 390

CourtSupreme Court of Kansas

DecidedMarch 9, 1912

DocketNo. 17,242

StatusPublished

This text of 121 P. 916 (Wise v. McAlpine) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wise v. McAlpine, 121 P. 916, 86 Kan. 805, 1912 Kan. LEXIS 390 (kan 1912).

Pincite

Opinion

Per Curiam:

This is a companion case to Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060, ante, p. 804. An examination of the record and briefs shows, as was stated on the argument, that involving as it does allotment No. 12 hut one removed from allotment No. 14 considered in Wood v. McAlpine, supra, substantially the same questions arise and the same principles are determinative. (See map, Fowler v. Wood, 73 Kan. 511, 517, 85 Pac. 763.) One point peculiar to this case should be noticed. The administrator’s deed under which the defendant holds described allotment No. 12 by metes and bounds containing 20.11 acres, and recited that the administrator sold so much thereof as had not been washed away and destroyed by the Missouri river, first having the same appraised and accurately surveyed and the amount accurately estimated, and that the grantees paid $150 an acre for 18.20 acres, making $2730, and that the administrator was ordered to execute and deliver a joint deed for “said premises.” The ,granting clause conveys “the real estate'aforesaid and above described, with all the appurtenances and privileges thereunto.” The court charged:

“It will, however, be observed that the administrator’s deed in this case, which is the defendant’s initial title, reserves such part of allotment No. 12 as had been washed away by the river upon which said allotment was abutted. I therefore instruct you that the right to acquire future accretions did not pass to the grantees or their successors in title under the administrator’s deed in evidence.”

As the deed shows an intention to convey all the remaining land fronting on the river “with all the appurtenances and [806]*806privileges thereunto,” it carried the right to accretions, and this instruction was erroneous.

The main feature being ruled by Wood v. McAlpine, supra, the judgment is reversed and a new trial ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam:

This is a companion case to Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060, ante, p. 804. An examination of the record and briefs shows, as was stated on the argument, that involving as it does allotment No. 12 hut one removed from allotment No. 14 considered in Wood v. McAlpine, supra, substantially the same questions arise and the same principles are determinative. (See map, Fowler v. Wood, 73 Kan. 511, 517, 85 Pac. 763.) One point peculiar to this case should be noticed. The administrator’s deed under which the defendant holds described allotment No. 12 by metes and bounds containing 20.11 acres, and recited that the administrator sold so much thereof as had not been washed away and destroyed by the Missouri river, first having the same appraised and accurately surveyed and the amount accurately estimated, and that the grantees paid $150 an acre for 18.20 acres, making $2730, and that the administrator was ordered to execute and deliver a joint deed for “said premises.” The ,granting clause conveys “the real estate'aforesaid and above described, with all the appurtenances and privileges thereunto.” The court charged:

“It will, however, be observed that the administrator’s deed in this case, which is the defendant’s initial title, reserves such part of allotment No. 12 as had been washed away by the river upon which said allotment was abutted. I therefore instruct you that the right to acquire future accretions did not pass to the grantees or their successors in title under the administrator’s deed in evidence.”

As the deed shows an intention to convey all the remaining land fronting on the river “with all the appurtenances and [806]*806privileges thereunto,” it carried the right to accretions, and this instruction was erroneous.

The main feature being ruled by Wood v. McAlpine, supra, the judgment is reversed and a new trial ordered.

Cite This Page — Counsel Stack

Bluebook (online)

121 P. 916, 86 Kan. 805, 1912 Kan. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-mcalpine-kan-1912.

Opinion

Related

Cite This Page — Counsel Stack