Clogston v. Smith

• Decision Date: 09 December 1911
• Docket Number: 16,834
• Citation: 119 P. 380,86 Kan. 1
• Parties: EMELIA NEW AND ROBERT H. CLOGSTON, as Trustee of Emelia New, a Convict, (EMELIA NEW, Appellant) v. J. A. SMITH et al. (J. A. SMITH, Appellee)
• Court: Kansas Supreme Court

119 P. 380

86 Kan. 1

EMELIA NEW AND ROBERT H. CLOGSTON, as Trustee of Emelia New, a Convict, (EMELIA NEW, Appellant) v. J. A. SMITH et al. (J. A. SMITH, Appellee)

No. 16,834

Supreme Court of Kansas

December 9, 1911

Decided July, 1911.

Appeal from Greenwood district court.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. FORM OF ACTION--Setting Aside Deed--Fraud. An action to recover the possession of a tract of land, the real gravamen of which is to set aside a recorded deed which purports to have been executed by the plaintiff, for the reason that such deed was fraudulently obtained by the grantee, is in form an action in ejectment but in substance is an action for relief on the ground of fraud.

2. EVIDENCE. The evidence requisite to sustain such action is the same as would be required if the facts of the transaction were pleaded instead of the conclusion authorized by the statute in actions of ejectment.

3. LIMITATION OF ACTIONS--Fraud. The limitation of time within which such action may be brought is two years after the discovery of the fraud as provided by section 17 of the code, subject to being tolled as in other cases, and not the fifteen years as provided in section 15 of the code.

4. PETITION--Demurrer--Grounds--Presumptions. Where in an action brought by several plaintiffs whose petition alleged several grounds of relief, the defendant demurs to the petition on the ground of misjoinder of causes of action and other grounds, the district court sustains the demurrer without specifying the ground upon which it is sustained, and an appeal is taken to the supreme court from such order and the ruling thereon is sustained on the ground of misjoinder of causes of action, it will be presumed that the district court decided the demurrer upon the same ground.

5. PETITION--Demurrer--Void Judgment. If in such case after sustaining the demurrer and without other pleading, the court enters a judgment in favor of the defendant that he is the owner and entitled to the possession of the property in question, the judgment is based on no allegation of fact in any pleading in the case and is void; it is coram non judice.

6. FAILURE--"Other than on Merits." The plaintiff, having commenced such action in due time, failed therein "otherwise than on the merits" and was entitled to one year after such failure within which to bring a new action.

7. JUDGMENT--Conclusiveness. The rule which determines the conclusiveness of a judgment is that it is conclusive only so far as it determines matters put in issue or admitted in the pleadings.

8. DEMURRER--Evidence--Province of Court. In passing upon a demurrer to the evidence of the plaintiff, either in chief or on rebuttal, the evidence should be regarded in the light most favorable to the plaintiff, giving full credibility to the witnesses and disregarding any conflicting evidence. The credibility of the witnesses and the preponderance of the evidence are questions to be submitted to the jury and, until the verdict is rendered, are not for the consideration of the court.

John Stowell, R. H. Clogston, L. E. Clogston, A. E. Crane, E. D. Woodburn, and F. T. Woodburn, for the appellant.

James Schultz, and T. A. Kramer, for the appellee.

OPINION

SMITH, J.:

It is conceded in this action that upon the death of her husband, Joseph New, in 1897, Emelia New became the owner of all the land in controversy, she having owned one tract prior thereto. On the 24th day of January, 1898, having been found guilty of murder in the second degree on the charge of killing her husband, she was sentenced to the penitentiary for the term of her natural life. Soon after her incarceration under the sentence, her brother, claiming to be her heir, brought an action to recover the same land. It was held that the sentence did not devolve the title upon her heir or heirs. (Smith v. Becker, 62 Kan. 541, 64 P. 70.) On the determination of that case, Robert Clogston was appointed and qualified as trustee of the estate of Mrs. New, and on the same day commenced an action, jointly with Mrs. New and the firm of Stowell & Nold, to set aside the transfer from Mrs. New to E. C. Schultz and for the rents of the land. The defendant demurred to the petition on the ground of misjoinder of causes of action and other grounds; the demurrer was sustained, and an appeal was taken to this court. The decision of the lower court was affirmed December 12, 1903. (New v. Smith, 68 Kan. 807, 74 P. 610.) The present action was commenced by the trustee February 6, 1904, and after an amended petition had been filed therein, the court below sustained a demurrer thereto. An appeal was again taken to this court. In the decision it was held that the trustee was the proper party to maintain the action; that Mrs. New was without capacity to sue but that her appearance as a party should be treated as surplusage and redundant. The judgment was reversed. (New v. Smith, 73 Kan. 174, 84 P. 1030.)

On November 26, 1907, Governor Hoch granted a full pardon to Mrs. New, restoring her to her full civil rights, and on the 21st day of January, 1908, the district court made an order reviving the action in her name. While in the title of the action, in the amended petition, the name of Clogston as trustee was continued, the petition was signed only by attorneys for Mrs. New as plaintiff.

The defenses raised by the answer to the amended petition were: (1) That the attempted revivor is null and void; (2) general denial; (3) that the petition is barred by the two-year statute of limitations; (4) that on April 2, 1901, the district court, after sustaining a demurrer to plaintiff's petition in the same action which was decided on appeal to this court (New v. Smith, 68 Kan. 807, 74 P. 610), rendered judgment that the defendant, J. A. Smith, was the owner and entitled to the possession of the land. The amended reply, upon which the case was tried, consisted of a general denial of the third and fourth defenses.

The jury were impaneled and both parties submitted evidence. At the conclusion of the plaintiff's evidence in rebuttal the defendant demurred to all the evidence given by the plaintiff, for the reason, (1) that such evidence does not show the plaintiff is entitled to a verdict or judgment against the defendant, Smith; (2) that the evidence shows that the defendant is entitled to a verdict and judgment against the plaintiff for costs; (3) that the evidence of plaintiff shows that any interest she ever had in the land had been conveyed to the defendant and, in substance, that there is no evidence to show that such conveyance is not valid and binding on the plaintiff, but, on the other hand, shows defendant is the owner and in possession and entitled to said real estate. The demurrer was sustained and judgment rendered for the defendant. The plaintiff appeals.

It is evident that the bringing of an action by the plaintiff's brother is to be entirely disregarded in the decision of this case. Neither she nor the trustee of her estate was a party thereto. It is conceded that the plaintiff was disqualified to bring an action while she was in the penitentiary under sentence for a felony and that no action for the recovery of the land could legally be brought until a trustee of her estate was appointed and qualified. Until such time the running of the statute of limitations was tolled notwithstanding any knowledge the plaintiff or Clogston, who became the trustee, may have had of any fraud in the procuring of the deed to the land from her.

On the very day of his appointment the trustee commenced an action to recover the land, and the plaintiffs and others joined with him as plaintiffs in the petition filed, and other relief than the recovery of the land was prayed for therein. A demurrer to the petition, on the ground that there was a misjoinder of causes of action and other grounds, was filed and sustained by the court below, and the plaintiffs brought the action to this court for review. This court sustained the ruling upon the ground of misjoinder. (New v. Smith, 68 Kan. 807, 74 P. 610.) The record does not disclose upon what ground the district court based its ruling. It is therefore to be presumed that it was on the same ground upon which the decision was affirmed. ( Holderman v. Hood, 78 Kan. 46, 96 P. 71; Routh v. Finney County, 84 Kan. 25, 113 P. 397.)

As we shall later see, the judgment, purporting to be for the defendant, awarding him the title and right of possession of the land, was void. The plaintiff failed, then, to maintain the action in the district court on an order sustaining a demurrer on the ground that the causes of action set forth in the petition were improperly joined. Such failure is within the meaning of "otherwise than upon the merits" as used in section 22 of the civil code. The trustee commenced that action within due time and failed therein "otherwise than upon the merits." By the provisions of section 22 of [86 Kan. 6] the code he had one year after such failure to commence a new action.

It is contended that, since plaintiffs stood upon their petition for the purpose of appealing, the judgment of the court thereupon rendered, although void so far as it purports to finally determine the merits of the case, must at least be regarded as a valid dismissal of the action, and the action of the trustee then, at least," failed otherwise than upon the merits"; that he had only one year thereafter to commence a new action, and not one year after the supreme court affirmed the ruling.

It is true that when a final judgment is appealed from, the judgment is only suspended during the appeal and, when affirmed, becomes effective from the time it would have been effective, had the...