Bradley v. Hall

• Decision Date: 12 June 1948
• Docket Number: 37218.
• Citation: 165 Kan. 358,194 P.2d 943
• Parties: BRADLEY v. HALL et al.
• Court: Kansas Supreme Court

194 P.2d 943

165 Kan. 358

BRADLEY v. HALL et al.

No. 37218.

Supreme Court of Kansas

June 12, 1948

Appeal from District Court, Atchison County; Lawrence F. Day, Judge.

Action by Lloyd K. Bradley, guardian of Ora M. Bradley, an insane person, against Thomas E. Hall, T. W. Overman, and others to set aside a deed and to quiet title to real estate. From a judgment sustaining a demurrer to his amended petition, the plaintiff appeals.

Judgment affirmed.

Syllabus by the Court.

1. When it appears from the face of a petition the plaintiff's cause of action is barred by the statute of limitations, such pleading does not state a cause of action and is subject to demurrer.

2. When a demurrer to a petition includes several grounds and is sustained generally if the ruling on any ground is good the decision of the trial court must be approved.

3. Following decisions cited in the opinion it is held that sale of the family homestead by the husband and guardian of an insane wife, even though such sale be made with the consent approval and at the direction of the probate court, is in violation of section 9, article 15, of the constitution.

4. The provisions of G.S.1935, 60-304, requiring actions brought by guardians of insane persons for recovery of real estate sold by guardians of such incompetent persons, under orders of the probate court directing such sales, to be commenced within five years after the date of the recording of deeds made in pursuance of those sales (1) apply to sales of family homesteads which are void because of the constitutional inhibition against alienation of such homesteads without the joint consent of husband and wife when that reslationship exists and (2) bar any cause of action guardians of insane persons may have had to recover such real estate unless actions are instituted by them within five years from the date of the recordation of such deed.

5 G.S.1935, 60-305, providing that any person entitled to bring an action for the recovery of real property, who may be under legal disability when the cause of action accrues, may bring his action within two years after his disability is removed is an exception to the statute of limitations (G.S.1935 60-304) and must be strictly construed. Its provisions (1) merely extend the time for the bringing of an action by an incompetent so that the general statutory limitation period will not expire earlier than two years after the removal of such incompetent's disability, (2) are limited and accord privileges only to a person who is under such disability when his cause of action accrues, and (3) do not extend to a guardian who essays to act for and on his behalf.

6. The amended petition in an action by a guardian to set aside a void deed and recover the possession of real estate is examined, and it is held, the trial court's ruling in sustaining a demurrer thereto must be sustained because it appears from the face of such pleading the guardian's cause of action was barred by the statute of limitations.

Roy V. Nelson, of Hiawatha, for appellant.

Maurice P. O'Keefe, Karl W. Root, and Dolan McKelvy, all of Atchison (Ernest F. Armstrong, of Auburn, Neb., on the brief), for appellee.

PARKER Justice.

This action was instituted by the guardian of an insane person to set aside a deed and to quiet title to real estate. The plaintiff appeals from a judgment sustaining a demurrer to his amended petition.

William E. Bradley and Ora M. Bradley were husband and wife on March 1, 1900, when the former acquired title in his own name to a quarter section of real estate located in Atchison county. They were living on such real estate on that date and continued to occupy it as the family homestead until April 22, 1913, when Ora, the wife, was adjudged insane and committed to a state institution. Thereafter, and until October 26, 1932, William occupied the land as his home. Ora was never restored to sanity and on all dates in question was, and is now, confined in the state hospital.

Sometime after Ora was declared insane William was appointed as her guardian. On October 26, 1932, he made written application to the probate court of Atchison county for authority to sell and convey her interest in the homestead. On the same day that court made an order authorizing the sale and directing conveyance of the property by guardian's deed to the defendant, T. W. Overman. Pursuant to this order such a deed was immediately executed. Two days thereafter, on October 28, 1932, it was recorded. Apparently William deeded his interest in the real estate at the same time he executed the guardian's deed. At any rate, for a period of almost fifteen years, from the date of the execution of that instrument up until the moment of the filing of the instant action Overman had possession of such property under open and undisputed claim of title and ownership.

On November 30, 1932, William E. Bradley died leaving his insane widow and one son as his sole heirs at law. Thereafter, on some date not ascertainable from the record, the present plaintiff, Lloyd K. Bradley, was appointed as guardian of the estate of Ora M. Bradley.

Just what happened with respect to the petition after the instant action was filed is also undisclosed by the record. We assume the plaintiff was required to amend that pleading. In any event it suffices to say he did file an amended petition which in substance, after elimination of averments pertaining to defendants who are not parties to this appeal, set forth facts as heretofore related. In addition it alleged that the proceedings resulting in the execution of the guardian's deed on October 26, 1932, and the deed itself, were void by reason of the fact the property so sold and conveyed was then and is now the homestead of Ora M. Bradley, who was then insane and has never been restored to sanity or surrendered her rights therein. It also charged that Ora has never been divested of those rights and that she and the surviving son of William E. Bradley are now the owners of such homestead.

To the amended petition the defendant filed a demurrer which reads:

'Comes now the Defendant, T. W. Overman, and demurs to the Amended Petition of the Plaintiff for the reason that the Amended Petition does not state a cause of action in favor of the Plaintiff and against the Defendant, T. W. Overman, and for the further reason that the Statutes of Limitations has run on any pretended claim that the said Plaintiff may have against the Defendant, T. W. Overman.'

The plaintiff's appeal is from the order and judgment of the trial court sustaining the foregoing demurrer in its entirety.

At the outset it should be said it is well settled in this jurisdiction that when it appears from the face of a petition a cause of action is barred by the statute of limitations such pleading does not state facts sufficient to constitute a cause of action and is therefore subject to demurrer. Kansas State Bank v. Shaible, 118 Kan. 73, 234 P. 40; Ryan v. Scovill, 147 Kan. 748, 750, 78 P.2d 877; American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P.2d 468; Pratt v. Barnard, 159 Kan. 255, 154 P.2d 133. It should also be stated that the trial court's general decision holding the amended petition fails to state a cause of action must be upheld if its action with respect to either ground of the demurrer is warranted by the record. Ritchie v. Johnson, 158 Kan. 103, 110, 144 P.2d 925; Turner v. Jarboe, 151 Kan. 587, 590, 591, 100 P.2d 675.

With facts, pleadings, and uncontroverted legal principles established we are now in position to give consideration to the real issue presented by this appeal.

In support of the trial court's ruling appellee contends that the first ground of his demurrer should have been sustained because the provisions of G.S.1935, 39-211 to 217, incl., in force and effect on the date of the execution of his guardian's deed, authorized a guardian of an insane person to sell the homestead and execute a valid deed of conveyance therefor when the deed was joined in by the husband or wife of the incompetent and the sale was made under the direction and approval of the probate court. This contention is no longer open to debate in this jurisdiction and we are not disposed to labor it. Under our decisions (Locke v. Redmond, 6 Kan.App. 76, 49 P. 670; Iles v. Benedict, 110 Kan. 200, 203 P. 925 [and earlier cases there cited]; In re Barnell's Estate, 141 Kan. 842, 44 P.2d 214; Steinkirchner v. Linscheid, 164 Kan. 179, 182, 185, 186, 188 P.2d 960), there can be no question but what the sale of a homestead by a guardian's deed, where one spouse is insane, even though such deed be executed with the consent and approval of the probate court, is in violation of the provisions of section 9, article 15 of our constitution providing that a homestead shall not be alienated without the joint consent of husband and wife when that relationship exists. This, let it be added, is now and has been the law of this state regardless of the fact, suggested by appellee, that G.S.1935, 39-211, chapter 181, Laws of 1925, which it should be noted has since been repealed (chapter 180, section 280, Laws of 1939), was enacted by the 1925 legislature with the view of encompassing such constitutional inhibition.

From what has just been stated it necessarily follows that the trial court's decision on the demurrer was erroneous unless appellee's second contention, to the effect the amended petition shows upon its face the statute of limitations had run against any cause of action the appellant may have had against him, is meritorious. We turn to that question.

Heretofore we have noted it appears from the face of the amended petition that the deed under which appellee claims title to the homestead was recorded on October...