Carter v. Becker

• Decision Date: 11 June 1904
• Docket Number: 13,687
• Citation: 69 Kan. 524,77 P. 264
• Parties: ROSA E. CARTER et al. v. DANIEL BECKER
• Court: Kansas Supreme Court

77 P. 264

69 Kan. 524

ROSA E. CARTER et al. v. DANIEL BECKER

No. 13,687

Supreme Court of Kansas

June 11, 1904

Decided January, 1904.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT -- Instructions to Jury after Retirement a Matter of Discretion -- When Reviewable. The district court has a large discretion in the matter of giving additional instructions after the jury has retired for deliberation. It may supplement the original charge whenever confident that no substantial right will be infringed and that the ends of justice will be best subserved by doing so and only in case of abuse, resulting in injury, will an exercise of such discretion be reviewed.

2. TITLE AND OWNERSHIP -- Amicable Division by Heirs -- Deed to Husband of Heir Presumed a Trust, Not a Gift. If the heirs of an estate, three in number, one of whom is a married woman, make an amicable division of the real property they have inherited, and for the purpose of consummating such arrangement meet and exchange deeds to the end that each one shall receive from the others a conveyance for a two-thirds interest in the land he is to own in severalty, and after the woman's death it be discovered that the deed of her coheirs to her share of the land is in the name of her husband, the law will presume, in the absence of evidence to the contrary, that the husband took the deed for the use and benefit of his wife and not as a gift from her.

3. TITLE AND OWNERSHIP -- Ejectment by Heirs of Wife against Grantee of Husband -- Burden of Proof. In an action of ejectment for the recovery of land so deeded, brought by the deceased wife's children against her husband's grantee, the burden is upon the plaintiffs to establish the fact that the deed was of the wife's separate property; but when that fact appears, whether the deed was taken in the name of her husband with the wife's consent or not, it devolves upon the defendant to establish that a gift was intended, and not a trust.

4. TITLE AND OWNERSHIP -- Intention of Wife to Make a Gift is a Question for the Jury. In such an action the question of an intention on the part of the wife to give to her husband a two-thirds interest in the land is one of fact for the jury, to be determined in the same manner as questions of fact in other cases.

David Overmyer, for plaintiffs in error.

M. T. Campbell, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

In his lifetime John Cunningham was the owner of a tract of land in Shawnee county. When he died he was a widower, and he left no will. His heirs at law were his married sons, John W. and Christopher, and his daughter, Martha, married to Mitchell West. These children entered into an amicable arrangement for a division of the land their father had left them, and for the purpose of consummating such arrangement they met, according to a previous appointment, at the office of an attorney at law in the city of Topeka and exchanged deeds which he had prepared, to the end that each one should receive from the others a deed for a two-thirds interest in the land which he was to take in severalty. One of these deeds was made to Mitchell West instead of to Martha, his wife. This deed was placed of record, and the respective parties entered upon the separate possession and enjoyment of their respective portions of their patrimony. Mrs. West and her children occupied the land conveyed to her husband, with him, as their homestead, until the time of her death, which occurred in 1885. She died intestate, leaving two minor children, the plaintiffs in the district court. Two other children had died in infancy some years before.

At the time of her decease Mrs. West was the undisputed owner of one-third of the land she occupied, since that interest was not affected by the deed of her brothers to her husband. Under the law of descents and distributions, as it then stood, Mitchell West inherited one-half of this one-third interest as her surviving husband, and also inherited one-half of the other half of such one-third as the heir of his two deceased children. The plaintiffs inherited the remaining one-twelfth of the land.

In February, 1895, Mitchell West and a second wife made a warranty deed of the land to Daniel Becker, the defendant in the district court, and delivered its full possession to him. The plaintiffs, from birth until the time the land was sold, resided upon the premises with their father. At the date of the sale one of them had barely reached her majority, while the other was some three years younger. They subsequently married brothers, and in the year 1901 brought suit to recover possession of the land, not only claiming the one-twelfth interest which unquestionably belonged to them, but asserting as well that their mother was the owner of the entire interest described in the Cunningham deed to Mitchell West; that they inherited a portion of this interest from her; and that the defendant purchased with notice of their rights. Upon a trial the jury awarded the plaintiffs one-twelth of the land and judgment was rendered accordingly. Error is assigned with respect to the conduct of the proceedings in the district court.

After the jury had deliberated for some time upon the case they asked for further instruction upon a proposition of law. The court responded with a full exposition of the doubtful matter, and it is now urged that the court had no authority to instruct at length at that stage of the proceeding. The instruction was not a virtual substitute for the charge already given, was not given in a manner calculated to mislead the jury, and did not leave them to infer that they should certainly find in a particular way for one of the parties. Hence, it does not fall within the ban of the case of Foster v. Turner, 31 Kan. 58, 1 P. 145. The court has a large discretion in the matter of giving additional instructions after the jury have retired for deliberation, and may supplement the original charge whenever confident that the ends of justice will be best subserved by doing so. A judicious exercise of the right tends to the sure and efficacious administration of the law. Even in a criminal case the court may, of its own motion, give the jury additional instructions to meet any difficulty which may present itself to their minds (The State v. Chandler, 31 Kan. 201, 1 P. 787), and only in case of abuse, resulting in injury to some substantial right, will an exercise of such discretion be reviewed.

The evidence introduced to account for the appearance of Mitchell West's name in the deed was very unsubstantial and unsatisfactory. So much either of uncertainty or of improbability attached to every explanation offered that it was evident that the jury might be compelled to disregard them all, and view the case as one in which a husband is found in the unexplained possession of a deed apparently investing him with title to land allotted to his wife as her portion of her deceased father's estate. By using the knowledge which the jury possessed in common with mankind, it was possible for them to draw a rational conclusion that Mrs. West did understand and assent to the form of the deed as it was actually prepared, signed, delivered, recorded, and preserved. But it was not possible for them to say whether Mrs. West intended to give the land to her husband, or whether it was understood that he should hold it for her or for her infant daughters or for some other purpose. Under these circumstances it was of the utmost importance that the jury be instructed fully and accurately with reference to the interpretation the law itself would place upon the transaction, in the absence of explanatory facts.

The court said that, prima facie, the deed to Mitchell West was what it purported to be upon its face, and was made to the person intended; that, unexplained, the result of the transaction showed what it was, and that, prima facie, the grantee in the deed was the owner of the property, because all transactions are presumed to be rightful and honest and fair. This instruction ignored the conceded fact that the property dealt with was derived by Martha West from her father by descent, and that upon segregation it became her sole and separate estate, not subject to the disposal of her husband or liable for his debts. (Married-woman's-property act, Gen Stat. 1901, § 4019.) In such cases the law is now well settled that the husband is presumed to hold the land in trust for his wife's benefit, in the absence of proof that she intended it as a gift to him. (Stickney v. Stickney, 131 U.S. 227, 9 S.Ct. 677, 33 L.Ed. 136; Grabill v. Moyer et al., 45 Pa. 530; Bergey's Appeal, 60 id. 408, 100 Am. Dec. 578; Adoue v. Spencer, 62 N.J.Eq. 782, 49 A. 10, 56 L. R. A. 817, 90 Am. St. Rep. 484; Jones v. Davenport, 44 id. 33, 46, 13 A. 652; Sykes v. City Savings Bank, 115 Mich. 321, 73 N.W. 369, 69 Am. St. Rep. 562; Wales v. Newbould, 9 id. 45, 64; Chadbourn v. Williams, 45 Minn. 294, 47 N.W. 812; McNally v. Weld, 30 id. 209, 14 N.W. 895; Denny et al., Executors, v. Denny, 123 Ind....