
    Charles Pennell et al. v. Hattie C. Felch.
    1. Partition — Bes Judieata. In an action of partition, where the title to land and the right to divide and dispose of the same in severalty are put in issue or might have been litigated therein, the judgment rendered is binding upon all the parties to the proceeding and those holding under them as to such issues.
    2. Appeal — Presumption. In the absence of the testimony or of a special finding upon a material question in the case, it will be presumed that the facts disclosed in evidence were such as to support the general finding and judgment of the court.
    
      Error from Doniphan District Court.
    
    ActioN by Hattie C. Felch against Charles Pennell and others, to recover certain land. The plaintiff recovered a judgment, and defendants bring the case here. The opinion herein, filed April 6, 1895, states the material facts.
    
      S. L. Ryan, for plaintiffs in error.
    
      Albert Perry, C. D. Walker, and J. L. Berry, for defendant in error.
   The opinion of the court was delivered by

Johnston, J. :

This was an action to recover a 40-acre tract of land in Doniphan county, which is a part of a body of land purchased in 1859 and 1860 for persons who before that time had been the slaves of Joshua Pennell, of North Carolina. In 1855, Joshua Pennell made a will by which he gave to all of his slaves their freedom ; and he directed that his executor, Joshua Winkler, should remove them to one of the free states and purchase for them stock, implements and utensils needed for farming, and procure for them some land, the title of which should be settled in such way that the emancipated slaves and their children and issue should have a common use and benefit of the said land during the time they may live on it; but if any of them shall remove from said land and cease to live upon it, then in that case the right and title of such of them as shall remove and cease to live upon it shall be determined, and he, she or they shall no longer hold right to any part of said land.” A fund was set apart with which the executor was to purchase the land, and also pay the expenses of the removal of the emancipated slaves to the free state. Shortly after the making of the will, Joshua Pennell died in North Carolina, leaving eight slaves emancipated by the will, who were generally known by the name of the testator, a part of whom were removed to Kansas, in accordance with the directions of the will, and some of them sold themselves back into slavery, while others declined to avail themselves of the provisions of the will, and never came to Kansas. In 1869 a partition suit was brought in the district court of Doniphan county, in which all of the Pennells who were named in the will, and who had been brought to Kansas, were parties. In that proceeding the land which was purchased for them and upon which they had resided until that time was partitioned among them, and the parties to the proceeding took possession of the portions respectively assigned to them in severalty, and thereafter occupied the same. Under this proceeding, Augustus Pennell obtained the land in controversy in this action, and afterward, in 1877, upon a mortgage given by him and his wife, a judgment of foreclosure was rendered under which the land was appraised and sold. The purchaser at the sheriff’s sale took possession of the land, which was continued until January 8, 1881, when it was conveyed to the plaintiff below, who remained in possession of the land for a time, but subsequently some of the Pennells gained possession of the land, and hence she commenced this action, naming as parties Charles Pennell, Newton Pennell, and Felix Pennell, as well as several other parties who disclaimed or were dismissed from the action. The trial 'Court found that the plaintiff was entitled to the possession of the land, and also gave judgment against Charles, Newton and Felix Pennell for $105, for the rents and profits of the land during the time they were in possession of the same.

It is manifest that the rights of the parties under the will and under the purchases of land made for the Pennells by the executor were adjusted and determined in the partition suit in 1870. That proceeding involved an interpretation of the will, and the kind of title acquired under the will, and the conveyances that.were executed. The judgment in that action is conclusive upon the parties thereto, not only as to the matters actually determined, but also as to every other matter which might have been litigated and decided in the action. All of the plaintiffs in error in this case were parties to that proceeding except Felix Pen-nell. He is a son of Sophronia Pennell, who was a party to the proceeding, and to whom a share of the land was allotted. The record does not affirmatively show that he was a party, nor does it show that he had been born when the partition was made. The testimony is not here, and the findings are silent upon that subject. In this state of the record the general finding will be treated as a finding of every special thing necessary to sustain the judgment, and is conclusive in this court on all doubtful or disputed questions of fact. We cannot assume the existence of facts that would impair the validity of the judgment, but should rather presume the facts to be such as are not inconsistent with those specially found and yet will sustain the judgment that was given. It does not appear that any request was made for other and more specific findings, and none of those given can be said to be inconsistent with the judgment. (Kellogg v. Bissantz, 51 Kas. 418.) The land in controversy was allotted, and each of the parties has received the share apportioned to him. The acceptance and disposition of the share so allotted estops any of such parties from questioning the adjudication and division that was made of the property. The judgment of the district court must therefore be affirmed.

All the Justices concurring.  