Collins v. Richardson

• Court: Kansas Supreme Court
• Writing for the Court: THIELE
• Citation: Collins v. Richardson, 212 P.2d 302, 168 Kan. 203 (Kan. 1949)
• Decision Date: 10 December 1949
• Docket Number: No. 37592,37592
• Parties: COLLINS et al. v. RICHARDSON.

Page 302

212 P.2d 302

168 Kan. 203

COLLINS et al. v. RICHARDSON.

No. 37592.

Supreme Court of Kansas.

Dec. 10, 1949.

Syllabus by the Court.

1. A motion to strike allegations of an answer, challenging the sufficiency thereof to state a defense, is tantamount to a demurrer and an appeal lies from a ruling sustaining the motion.

2. The general rule is that a statute of limitations can be pleaded only as a defense and that it cannot be made the basis of a claim for affirmative relief.

3. The statute making barred demands unavailable as a cause of action or a ground of defense (G.S.1935, 60-313) has no application to matters of pure defense.

4. An action to reform a trust agreement pertaining to real estate made October 5, 1931, and recorded in the proper county on December 8, 1931, on the ground the execution thereof was procured by fraud, and where there was no claim of fraud by concealment of the recording, became barred by the statute of limitations within two years from December 8, 1931 (G.S.1935, 60-306 Third).

5. An action to reform a trust agreement pertaining to real estate on the ground of mutual mistake is barred if not commenced within five years from the date the mistake occurred (G.S.1935, 60-306 Sixth).

6. An answer, filed in an action to determine ownership of real estate, is examined, and held, that the trial court did not err in striking therefrom certain allegations outlined in the opinion.

Jerry E. Driscoll, of Russell, argued the cause and D. A. Hindman, of Stockton, was with him on the briefs for the appellant.

W. McCaslin, of Stockton, and Clayton S. Flood, of Hays, argued the cause, and Henry F. Herrman and E. C. Flood, of Hays, were with them on the briefs for the appellees.

The opinion of the court was delivered by

THIELE, Justice.

This was an action to determine the extent of interest of the parties in certain real estate and to quiet the title of plaintiffs to their interests therein. Certain allegations of the answer of the defendant were stricken by order of the court and she has appealed.

The allegations of the petition may be summarized as follows: M. C. Merritt, then the owner of a quantity of real estate, including the land in Ellis County presently involved, died intestate in 1930, leaving as his heirs his widow Mahala E., his daughters Nellie Henderson and Mollie L. Richardson, his son William A., and three grandchildren Doralynn Collins, Francis Leroy Collins and Donald Collins. An action to partition all of the real estate was commenced but by agreement of the parties, Nellie Henderson elected to take the real estate presently involved and a sheriff's deed therefor was executed and delivered to her. As part of the agreement, on October 5, 1931, Nellie Henderson entered into a trust agreement, the details of which will be more fully set forth later, stating she held the title in trust for the parties in the proportion of one-half for Mahala, one-eighth each for herself, Mollie and William, and one-twenty-fourth each for Donald, Doralynn and Francis. A copy of this trust agreement was attached to the petition and made a part thereof. The sheriff's deed and the trust agreement were recorded in the office of the register of deeds on December 8, 1931. (It is also noted that a copy of the trust agreement was made a part of the answer later mentioned, that copy showing it was recorded in the office of the register of deeds of Ellis County on December 8, 1931.) On December 1, 1931, William A. Merritt died intestate, leaving his mother, Mahala E. Merritt, as his sole heir. On June 9, 1937, Mahala E. Merritt died testate, owning an undivided five-eighths of the involved real estate. Under her will she devised her undivided interest in the real estate to her daughter Nellie Henderson. Allegations concerning transfer of mineral rights need not be noticed. It was alleged that the defendant Mollie L. Richardson claimed some right other than her undivided one-eighth interest, adverse to the interest of the other owners, all of whom joined as plaintiffs, and they prayed that she be required to answer and set up her claim, that it be adjudicated, and that plaintiffs have judgment that they owned the interests set forth in the petition and their title thereto be quieted.

The trust agreement was between Nellie Henderson and her husband as first parties, and Mahala E. Merritt, Wm. A. Merritt, Mollie L. Richardson, Donald Collins, Doralynn Collins and Francis Collins as second parties, and recited that the parties were, as heirs of M. C. Merritt, the owners of the involved real estate, and that in the partition suit a deed was made to Nellie Henderson, and it was agreed that she should hold title for the parties (in the same proportions as are alleged in the petition) and that her duties were to rent the lands, pay the taxes and distribute any surplus after providing for the payment of taxes. It was further provided the agreement should run for five years 'and the said first party shall not sell said land without the unanimous consent of all of the parties.' Further provision was made that if at the end of five years the land had not been sold, the first party should continue to hold the property under the same terms 'and shall not sell or dispose of said property, without the unanimous consent of all parties.' This trust agreement was signed by each of the parties.

In her answer Mollie L. Richardson alleged the death of M. C. Merritt, those who survived him as heirs and their proportionate shares of his estate; that a partition action was commenced and by agreement the title was taken in the name of Nellie Henderson, substantially as alleged in the plaintiffs' petition. The gist of the remainder of her answer is as follows: In paragraph 10 it was alleged that all of the heirs, including Mahala E. Merritt, orally agreed that the real estate would be held intact as family property for a period of five years and during that period none of the land nor any of the interests of the parties therein could or would be sold or otherwise disposed of without the unanimous consent and approval of all, nor until the death of the mother Mahala E. Merritt who was then seventy-eight years of age, and if the land and was not disposed of within the five-year period, then the written trust agreement should remain in full force until the death of Mahala E. Merritt, unless the land was sooner sold with the unanimous consent of all parties interested, and if not so sold, upon the death of Mahala E. Merritt, the real estate should and would go to and vest in the parties as her heirs, and as their interests might appear under the statutes of descents and distributions of Kansas, and that a written trust agreement would be prepared and signed by all of the parties, covering and incorporating all of the terms and provisions of the oral agreement. In paragraph 11 it was alleged that Mahala E. Merritt and particularly Nellie Henderson, procured the drafting of a written trust agreement, a copy being attached to the answer (and being the same agreement the terms of which are heretofore reviewed) and prior to the execution thereof represented to Mollie L. Richardson that the written agreement so prepared contained and completely expressed all of the terms and provisions of the prior oral agreement, and Mollie L. Richardson, without carefully examining the same or observing omissions and mistakes therein, believed and relied upon the oral representations aforesaid and assumed that the written agreement expressed the actual agreement of the parties. In paragraph 12 it was alleged that through oversight, accident, mistake or common mistake, or the oversight and mistake on the part of Mollie L. Richardson, and the oral representations of the plaintiffs and particularly Nellie Henderson who sat idly by and remained silent knowing that the written agreement failed to set...