5. THE PRODUCTION OF EVIDENCE IN REAL

ACTIONS.

Sec. 1274. Evidence in ejectment.

A deed from one not shown to have any interest in or connection with the land proposed to be conveyed, is inadmissible as evidence of title in an action for its recovery; and an instrument purporting to convey land, in which the

description is so vague and uncertain as to be meaningless, and there is nothing in the deed by which the identity of the premises can be ascertained, is void. The order in which evidence shall be received must to a great degree be left to the discretion of the court trying the case, and, unless that discretion has been abused, its action furnishes no ground for complaint.1

Where a defendant in an action of ejectment claims title based on a tax deed, and also upon a decree quieting title in his antecedent grantor in possession under such tax deed, and in an action to which plaintiff was a party, the validity or invalidity of the tax deed is not material unless the decree quieting title is absolutely null and void, and subject to the collateral attack made in the ejectment action.2

It is error to reject an offer of evidence tending to prove that the holder of a quitclaim deed from one who had received a warranty deed, and had then executed back to his grantor a bond for reconveyance, knew that the deed and bond were in fact given as security for money, and not for a conveyance and reconveyance of the land.3

In the action plaintiff need not state, on offering in evidence the record of the patent to the land in controversy, that he intends to follow up the conveyance of title from the patentee down to himself, as, without proof of this original conveyance of title, proof of other conveyances would be futile. And where plaintiff claims title through a sheriff's deed, he has a right to begin at the source of his title, and go forward, and need not begin at the sheriff's deed, and trace his title down to the Government.1

In an action for the recovery of real estate where the answer is a general denial, on trial, the plaintiff must show a perfect title, or state all the facts which correspond with that degree of proof. When in such action the plaintiffs

1 McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822.

2 Priest v. Robinson, 64 Kan. 416, 67 Pac. 850.

3 Pope v. Nichols, 61 Kan. 230, 59 Pac. 257.

4 Green v. Holmes, 9 Kan. App. 886, 58 Pac. 128.

show a deed to their ancestors, and then rest, they have not made out a prima facie case; nor is this defect supplied by the defendant who puts in evidence a deed from the administrator of the estate of plaintiffs' ancestors, to his vendors, without any testimony that he holds under the title. The deed is some evidence that he holds under it, but not conclusive."

It was held that where parents and their children unite in a deed conveying lands belonging to the estate of a deceased member of the family, a statement that the persons so joining in the deed are heirs of the decedent, is admissible as evidence of the identity of a sister of the decedent, joining in the conveyance as an heir under a surname different from her maiden name."

Where the defendant claims a right of possession, only under a contract with the plaintiff for the purchase of the property, evidence of title on the plaintiff's part, becomes immaterial."

In an action of ejectment, proof of possession under claim of title for over fifteen years is sufficient to sustain a finding of title as against a party under no disability, and claiming title only by virtue of a recent and insufficient tax deed.

5 Bancroft v. Chambers, 10 Kan. 275; Clayton v. School Dist., 20 Kan. 257; Allen v. Houston, 21 Kan. 201. In an action brought by C against M to recover a tract of land, C offered evidence tending to show that the land was granted by the United States to a railway company, through which C claimed the land. M subsequently attempted to preempt the land as public land, claiming that, while it was within the limits of the grant, it was excepted from it; but the only evidence offered to support his claim was a notice of a decision by the local land officers, made three days prior to the trial, and which was not

pleaded by him, which purported to decide some controversy between the railway company and M, adversely to the company, but the questions involved and decided were not shown. Held, that the notice did not overthrow the prima facie showing of a right of recovery in C, and that there was sufficient evidence to sustain the judgment in her favor. Mosier v. Clapp, 44 Kan. 450, 24 Pac. 951.

6 King v. Hyatt, 51 Kan. 504, 32 Pac. 1105.

7 Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83.

8 Hollenbeck v. Ess, 31 Kan. 88, 1 Pac. 275.

Where, on the trial of an action in ejectment, the record of a deed was offered in evidence, purporting to have been made and signed by George H. Case, but the certificate of acknowledgment was to the effect that the execution of the instrument was the act of George H. Crane; and there was evidence that the original deed was not in the possession or under the control of the party offering the same; and there is further evidence from the grantee named in the deed that the acknowledging officer, grantor, and attesting witness were dead; and that he was present at the time the deed was executed by George H. Case, and was cognizant of such fact; held, that the record of such deed was admissible in evidence, notwithstanding the apparent error in the certificate of acknowledgment."

Sec. 1275. Proof of title in the action to recover land.

In an action for the recovery of the possession of land from a defendant claiming title by adverse possession, the plaintiff is required to show his claim of title to the land in dispute by a chain of conveyances from the Government, or from a grantor proved to have been in the possession of the land is dispute when he executed the conveyance therefor.

It has been said that a prima facie case is made by showing a conveyance to plaintiff or one of his grantors in the chain of title, by one then in possession and occupancy of the land. If this is not done, he must run his title by deed or other necessary proof, to someone shown or admitted to be the common source of title, back to the Government. 10

9 Heil v. Redden, 45 Kan. 562, 26 Pac. 2. Attention is directed to the chapter in this book relating to conveyances in actions concerning real estate.

10 Middleton v. Westonney, 7 C. C. 268; Blake v. Davis, 20 O. 239; Hart v. Johnson, 6 O. 87; Newell on Ejectment, 585; Cunningham v. Harper, W. 366; Star v. Wright,

20 Ohio State, 99; Blackburn v. Blackburn, 8 O. 81; Avery v. Sites, W. 56. The following rule is given by Newell on Ejectment, page 585: "In actions of ejectment it is seldom necessary, especially in the older portions of the country, to go back to the government as a source of title or starting point in the chain of the plaintiff's title. The

In an action of ejectment, plaintiff need not state, on offering in evidence the record of the patent to the land in controversy, that he intends to follow up the conveyance of title from the patentee down to himself, as, without proof of this original conveyance of title, proof of other conveyances would be futile.

Where plaintiff claims title through a sheriff's deed, he has a right to begin at the source of his title, and go forward, and need not begin at the sheriff's deed, and trace his title down to the Government.11

Sec. 1276. When evidence of title immaterial.

In ejectment, where the defendant claims a right of possession only under a contract with the plaintiff for the purchase of the property, evidence of title on the plaintiff's part becomes immaterial.12

Sec. 1277. The degree of proof in ejectment.

Where the answer is a denial of title, the plaintiff will be required to show a perfect title, or a state of facts that dispenses with that degree of proof. Where in such action the plaintiff shows a deed from the ancestor, they have not made out a prima facie case; nor is this defect supplied by the defendant who puts in evidence a deed from the administrators of the plaintiff's ancestor to his vendors, without any testimony that he holds under the title. The deed is some evidence that he holds under it, but is not conclusive.13

government in this country is the common source of all titles, but it very frequently happens that a common source of title may be found after the government parted with its title to the lands in controversy. In such cases the plaintiff is not required to go back further than the

latest common source as a starting point in the chain of his title."

11 Green v. Holmes, 9 Kan. App. 886, 58 Pac. 128.

12 Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 84.

13 Bancroft v. Chambers, 10 Kan. 275.