Shafer v. Covey

Citations

• 90 Kan. 588
• 135 P. 676
• 1913 Kan. LEXIS 269

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Action to Set Aside — Barred in Three Years. A judgment in an action in which the court had jurisdiction of the parties can, after the statutory three-year period, be set aside only for lack of jurisdiction of the subject matter.</p> <p>2. - Deed of Homestead to Wife — By Husband — Judgment in Partition — Motion to Set Aside Judgment — Barred by Statutory Three-year Period. A husband .executed a deed to his wife purporting to convey to her for life their homestead, remainder to the daughter. After the latter reached her majority the widow sued in partition, alleging that at the time the deed was executed she did not consent or concur, and alleged that the daughter owned a vested remainder in an undivided one-half of the land, and the plaintiff an undivided one-half interest in fee simple, and that she had since her husband’s death always claimed, used and occupied all the land as a homestead, setting out the deed. The prayer was'for a one-half interest in fee simple and that she be held not liable for rents and profits. The court found the plaintiff entitled to one-half in fee and to a life estate in the other half, and the defendant entitled to a vested remainder in ©ne-half, to become absolute upon the termination of the life estate, and ordered partition. After more than three years had elapsed the defendant moved to set aside as void that part of the judgment relating to a life estate, which motion was granted. Held, error.</p> <p>3. Partition — Interest of- Remaindermen — May be Recognized. While remaindermen can not be compelled to have their interests partitioned or sold until they become entitled to possession, still when the question of a life estate is involved, an . action in partition which recognizes the vested interests of such remaindermen is proper.</p>