Byer v. Byer

• Decision Date: 03 November 1956
• Docket Number: No. 40203,40203
• Parties: August R. BYER, Appellant, v. Gladys BYER, Appellee.
• Court: Kansas Supreme Court

Page 137

303 P.2d 137

180 Kan. 258

August R. BYER, Appellant, v. Gladys BYER, Appellee.

No. 40203.

Supreme Court of Kansas.

Nov. 3, 1956.

Rehearing Denied Dec. 14, 1956.

Syllabus by the Court

1. A pure conclusion of law, although designated as a finding of fact, is to be treated as a conclusion of law on appellate review.

2. Existing regulations of the treasury department of the United States relating to how United States Savings Bonds, registered in co-ownership form, may be cashed are designed for the convenience and protection of the government and do not affect the legal rights of co-owner to share in the proceeds of such bonds when they have been cashed by the other.

3. Where the issues are clearly defined by the pleadings and plaintiff's petition states a cause of action and the evidence in support thereof is sufficient, and no meritorious defense thereto is suggested by the answer nor by defendant's evidence, the supreme court is authorized by the civil code to order the proper judgment to be directed, following Devlin v. City of Pleasanton, 130 Kan. 766, 288 P. 595, and other decisions cited in the opinion.

4. The record in an action to recover money and compel the defendant to account for proceeds received from United States Savings Bonds, registered in co-ownership and in beneficiary form, examined, and held, that under the facts, conditions and circumstances set forth in the opinion the parties are entitled to judgment as therein directed.

E. F. Russell, Ulysses, argued the cause, and Arthur R. Gates, St. John, was with him on the briefs for appellant.

Evart Garvin, St. John, argued the cause, and Robert Garvin and Morris Garvin, St. John, were with him on the briefs for appellee.

PARKER, Justice.

This, looking throught form to substance and although briefed and argued by the parties as if were in the nature of conversion, is actually and must therefore be regarded as a suit in equity to recover money and compel the defendant to account for proceeds received by reason of having cashed ten United States Savings Bonds, procured and registered in co-ownership form by one Albert Byer in the names of Mr. August R. Byer (his son) or Mrs. Glayds Byer (his wife); and one United States Savings Bond procured and registered in beneficiary form by the same individual in the names of Mrs. Gladys Byer P.O.D. August R. Byer, conceded to be the same person as August Byer.

Plaintiff commenced the action by the filing of a petition wherein, after reciting the purchase and registration of bonds as above indicated, he asserted that after the dates (describing them) of their purchase and on the date of their conversion by the defendant, Gladys Byer, he was the registered owner of an undivided one-half interest therein; alleged that about September 15, 1952, the defendant took possession of such bonds and thereafter, about February 9, 1954, before their maturity, cashed, redeemed, received payment and wrongfully converted such bonds to her own use, all without his knowledge or consent; and asked that the court (1) find he was the owner of an undivided one-half interest in and to such bonds prior to the date of their conversion, (2) require defendant to account to him for an undivided one-half interest in the proceeds realized from their redemption, with accumulated interest, and (3) grant judgment accordingly for whatever amount that sum might be, with interest from February 9, 1954, at 6% per annum, together with such other and further relief as might seem just and equitable.

For purposes essential to a disposition of the case it may be said the answer of the defendant contains a general denial; admits the purchase of the involved bonds, in the manner and form heretofore indicated; denies all other allegations of the petition not admitted; specifically denies plaintiff is entitled to receive any part of the proceeds from such bonds or that defendant is indebted to him in any amount, as alleged in the petition. In addition paragraph four of such answer states:

'This defendant further alleges that subsequent to the purchase of said bonds by the said Albert Byer, the said Albert Byer delivered all of the aforementioned and described bonds to this defendant as her sole and separate property in the event she desired to cash said bonds; that the said Albert Byer, at the time of the delivery of all of the said bonds, specifically described in Plaintiff's Amended Petition, to this defendant, further directed and authorized this defendant to cash said bonds subsequent to his death and use the proceeds to be received therefrom for the purpose of paying the same upon any deferal estate taxes or inheritance taxes which might be assessed against the estate of said decedent. Defendant further alleges that said bonds were cashed by this defendant and that all the proceeds received therefrom were used and applied by this defendant upon the payment of federal estate taxes which were assessed against the estate of said decedent.'

Plaintiff's reply to the answer admits that the bonds were cashed by the defendant and denies all other allegations contained in that pleading.

With issues joined as just related the cause came on for trial by the court which, after introduction of evidence and arguments by counsel, ultimately rendered judgment against the plaintiff and in favor of defendant in accord with and based on findings of fact and conclusions of law which read:

'Findings of Fact.

'1. Albert Byer, deceased father of plaintiff August R. Byer, and deceased husband of defendant Gladys Byer, during his lifetime purchased eleven United States Savings Bonds of the maturity value of $1,000.00 each. On ten of the bonds, the co-owners were named as 'Mr. August Byer or Mrs. Gladys Byer,' and on one bond the registration was 'Mrs. Gladys Byer POD August R. Byer.'

'2. That said bonds were kept in the possession of decedent at all times until his death, and were never delivered by him to either plaintiff or defendant during his lifetime.

'3. That on or about September 15, 1952, after decedent's death, Gladys Byer, the defendant, took possession of said bonds, and on or about February 9, 1954, said defendant redeemed said bonds and converted the proceeds to her own use, and that at said time the bonds, together with accumulated interest thereon, were of the value of $9,660.00.

'4. That the United States Treasury Regulations governing United States Savings Bonds provided in part as follows, where bonds are issued in co-ownership form:

"* * * During the lives of both co-owners, the bond will be paid to either co-owner upon his separate request without requiring the signature of the other co-owner; and upon payment to either co-owner, the other person shall cease to have any interest in the bond.'

'5. That under the Regulation quoted above, Gladys Byer, as a co-owner of said bonds, having secured possession of said bonds, was therefore entitled to cash and redeem said bonds and use the proceeds for her own purposes, and August R. Byer ceased to have any interest in said bonds.'

'Conclusions of Law.

'1. The court finds as a matter of law that after defendant Gladys Byer secured possession of said bonds and cashed them, that plaintiff, August R. Byer, no longer had any interest in said bonds. The court further finds that if the decedent had desired that Gladys Byer and August R. Byer share equally in the proceeds of said bonds, decedent should have had them registered, at the time of purchase, in the names of 'Gladys Byer and August R. Byer.'

'2. Judgment of the court is therefore rendered for defendant, Gladys Byer, with costs of the action taxed to the plaintiff, August R. Byer.'

Following rendition of judgment plaintiff's motion for a new trial was overruled. Thereupon he gave notice and brought the cause to this court on appeal where, under proper specifications of error, he is entitled to appellate review of the questions presently to be considered.

The issues will be clarified by immediate reference to two matters which do not involve the merits of the controversy.

Resort to finding of fact No. 5, heretofore quoted, discloses it is purely a conclusion of law and must be so regarded in determining the rights of the parties. It follows appellant was not required, as appellee insists, to abstract the evidence adduced in the court below in order to here obtain review of the question whether such conclusion of law is erroneous.

Much space in appellee's brief is devoted to contentions relating to the necessity of pleading and providing a demand in conversion cases. Our views respecting the nature of the involved action are stated in the very first paragraph of this opinion and we are convinced that in a situation such as is there outlined appellant was not required to either plead or prove a demand in order to recover judgment. For that reason no further reference will be made to arguments advanced respecting such contentions.

Upon an extended examination of the record, and careful analysis of all contentions advanced by the parties including arguments made with respect thereto, it becomes apparent...