New v. Smith

Citations

• 94 Kan. 6
• 145 P. 880
• 1915 Kan. LEXIS 34

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Fraudulent Deed — Evidence — Transcript of Stenographer’s Notes Competent. In an action to recover possession of certain real estate on the ground that a deed therefor had been procured by fraud and that the defendant took his title with notice of such fraud the plaintiff testified to transactions and communications had personally by her with one of the defendant’s grantors who was charged with the fraud, such grantor being present as an attorney ' in the case. At a subsequent trial, such grantor having died, the plaintiff was, on the defendant’s objection, precluded from testifying to the matters covered by such former testimony, and thereupon offered in evidence the stenographer’s transcript thereof. Held, that an objection thereto on the grounds of incompetency and because it concerned transactions and communications had personally with a deceased grantor from whom the defendant claimed' title was properly overruled. '</p> <p>2. Same. The statute permitting the use of the stenographer’s transcript of testimony (Gen. Stat. 1909, § 2407) does not restrict such use to the limitations which attach to a deposition under sections 337 and 368 of the civil code.</p> <p>3. Ejectment — Two Defenses — Not Inconsistent — Election. The defendant claimed title by virtue of his purchase, and also claimed the right to possession by reason of having paid off certain incumbrances which had been placed thereon by the plaintiff. Upon motion of the plaintiff th'e defendant, over his protest, was required to elect between these defenses and elected to stand upon his claim of title. At a subsequent trial he was held bound by such previous election. Held, that the 'two defenses are not inconsistent and the election was improperly required, and for that reason as well as because it was compulsory the defendant should not have'been held bound thereby.</p> <p>4. Same — Transaction Did Not Work a Merger of Title. Such payment did not as a matt