Jacks v. Masterson

Citations

• 99 Kan. 89
• 160 P. 1002

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Husband and Wife Orally Agree to Take Infant Child Into Their Family as Their Own Child and Heir — Specific Performance — Partition—Cross-petition States Cause of Action. In a suit for partition of real estate between the collateral heirs of a deceased person, the appellee filed a cross-petition in which she claimed to be the owner of the real estate by virtue of the full performance on her part of a contract, which she alleged was entered into on the one part by the deceased and his wife in their lifetime, and on the other part by her father when she was a child ten months old, by which her father surrendered to them full control and custody of her in consideration of which they agreed to take her into their family as their own child and heir. The cross-petition then alleged “that said contract so entered into . . . was evidenced by the following written instrument executed and delivered by” the parties, and set out a copy of the instrument which showed on its face that it had been executed and delivered by her father alone, although in the handwriting of the owner of the real estate. Held, that the trial court properly construed the cross-petition in its entirety as stating a cause of action founded upon a parol agreement, and as though it had alleged the existence of the written memorandum as some evidence of the terms of such parol agreement.</p> <p>2. Same — Instructions — No Prejudicial Error. In the cross-petition mentioned in the preceding paragraph it was not alleged that there was an agreement to adopt the appellee, nor was there any proof of a contract to adopt. There was, however, proof sufficient to sustain a finding of a parol contract by which the deceased and wife agreed, that in consideration of the father relinquishing his right to the appellee and the full discharge by her of a child’s duty to them, they would take full control and custody of her as their own child and heir. The court instructed that