Horville v. Lehigh Portland Cement Co.

Citations

• 105 Kan. 305
• 182 P. 548
• 1919 Kan. LEXIS 75

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Title of Case in Appellate Court. The code provision that “A ease appealed shall be docketed in the appellate court with the same title that the case had in the trial court, except that the parties shall be designated as appellant and appellee” (Civ. Code, § 579, Gen. Stat. 1915, § 7483), considered, and, in this case, the court declines to order appellant’s abstract and brief stricken because of the violation of the rule, but in the future may be obliged to compel its strict enforcement.</p> <p>2. Quieting Title — Cancellation of Deed Conveying Oil and Gas — Pleading — States Only One Cause of Action. In an action to quiet title which involves the validity and effect of a single instrument (a deed conveying oil and gas), the petition, which relies upon the ground of abandonment, and also that the instrument was fraudulently altered, and is void because it was not recorded within ninety days after its ■ execution, and was not listed for taxation, states but one cause of action.</p> <p>3. Deed — Conveying Mineral Reserves — Not Recorded — Not Listed for Taxation — Pleadings—Evidence. On the trial of such an action, the proof showed that the instrument had never been recorded, and, without the petition having been amended, and over defendant’s objection, plaintiffs were permitted to prove that defendant and its predecessor had never listed the instrument for taxation. Held, that the petition will be considered as amended to conform to the proof; and further held, that, in the absence of any request for a continuance, or claim that defendant was not prepared at that time to meet the evidence, and neither claimed below, nor in this court, that the property had, in fact, been listed for taxation, its rights were not prejudiced by the admission of the testimony, notwithstanding the court gave judgment for plaintiffs on the express ground that the instrument is void because of the failure to record it within ninety days from its