Dixon v. Fluker

• Citation: 125 P.2d 364,155 Kan. 399
• Decision Date: 09 May 1942
• Docket Number: 35499.
• Parties: DIXON v. FLUKER.
• Court: United States State Supreme Court of Kansas

125 P.2d 364

155 Kan. 399

DIXON v. FLUKER.

No. 35499.

Supreme Court of Kansas

May 9, 1942

Syllabus by the Court.

A "motion for judgment on the pleadings" is tantamount to a "demurrer".

A demurrer searches the record.

Where defendant filed motion for judgment on the pleadings court's attention was directed to the petition for examination and to its sufficiency.

A petition is demurrable if it appears on its face that the trial court has no jurisdiction of the subject matter of the action. Gen.St.1935, 60-705.

If one has an adequate remedy by an ordinary legal proceeding in the probate court to obtain desired relief, he cannot bring an action in the district court to obtain that relief.

Under the statute conferring equitable powers on probate courts with respect to matters properly before them, a probate court has exclusive original jurisdiction of an action to enforce a contract with a decedent to convey or devise realty, where the realty is part of the decedent's estate, and the estate is being administered. Gen.St. Supp.1941, 59-301.

Ordinarily equity will not enforce an oral contract by a decedent to convey or devise realty in return for services rendered by another, where services are strictly of a business nature and can be compensated for with money.

Alleged oral agreement by decedent with his partner that, if the partner would carry the principal burden of conducting the partnership business and help decedent with his private business affairs, partner should have certain realty of decedent after decedent's death, would not be specifically enforced by equity, since the contract was no more than a business arrangement, and the services could be measured in dollars.

In action for specific performance of oral contract whereby it was alleged that defendant's intestate had agreed to convey or devise realty to plaintiff, wherein defendant's pleading called an answer alleged that plaintiff had failed to pay defendant rent due her for realty involved, and prayed judgment for amount of the rent with interest, and plaintiff in reply admitted that he had not paid the amount, trial court, on refusing to enforce contract, properly gave defendant judgment for the rent, since the answer had the effect of a "cross-petition".

1. Under provisions of the Kansas probate code, Laws 1939, ch 180, § 17, G.S.1941 Supp. 59-301, the probate court has exclusive original jurisdiction of an action to enforce a contract with a decedent to convey or devise land where the land is part of the estate of the decedent and the estate is being administered.

2. Ordinarily, equity will not enforce an oral contract with decedent to convey or devise land in return for services rendered where the services are strictly of a business nature and can be compensated with money.

3. In an action to compel specific performance of a contract with a decedent to convey or devise land the petition is examined and it is held that the services described in the petition were of a nature which could be compensated with money.

Appeal from District Court, Geary County; Cassius M. Clark, Judge.

Action by W. F. Dixon against Patricia Fluker, as administratrix of the estate of Patrick M. Hickey, deceased, and Patricia Fluker, for specific performance of an oral contract whereby it was alleged that Patrick M. Hickey, deceased, had agreed to convey or devise certain realty. From a judgment in favor of the defendant on the defendant's motion for judgment on the pleading, the plaintiff appeals.

Judgment affirmed.

Matt Guilfoyle, of Abilene (Thornton D. Scott and John H. Lehman both of Abilene, and W. J. Scott, of Junction City, on the brief), for appellant.

C. Vincent Jones, of Clay Center (Wayne W. Ryan, of Clay Center, and Arthur S. Humphrey and I. M. Platt, both of Junction City, on the brief), for appellees.

SMITH Justice.

This was an action for the specific performance of an oral contract whereby it was alleged that the decedent had agreed to convey or bequeath certain real estate. After the issues were made up, judgment was given for the defendant on her motion for judgment on the pleadings. The plaintiff has appealed.

The petition alleged the death of one Patrick Hickey and that the defendant was the administratrix of his estate and only heir at law; that he had been engaged in the hardware business for some years before his death and owned considerable real estate in Geary and adjoining counties; that his wife was a sister of plaintiff; that defendant was the adopted daughter of Hickey and his wife and that plaintiff and Hickey had for many years previous been partners in the hardware business. The petition then alleged that Hickey owned certain described real estate in Junction City at the time of his death; that his wife died before he did; that shortly after the death of Hickey's wife plaintiff and Hickey entered into an agreement by the terms of which plaintiff agreed to stay with Hickey and carry the principal burden of conducting the partnership business and help Hickey with his private business affairs whenever called upon to do so and in consideration therefor plaintiff was to receive the real estate described at Hickey's death; that thereafter Hickey left the partnership affairs more and more in the hands of plaintiff and absented himself from the store for a considerable portion of the time; that plaintiff helped Hickey collect his rents and pay his bills, caring for Hickey and helping him with his business affairs and he continued to pay Hickey his share of the profits of the business; that he received no other compensation whatever from Hickey but Hickey frequently told him his reward for the loyalty with which he operated the store was to be this particular piece of property; that plaintiff faithfully and completely performed the contract on his part but that Hickey died on the 11th day of September, 1940, without conveying or devising the real estate.

The prayer was for a specific performance of the contract and such other relief as the court might deem just and equitable.

On motion of the defendant the court struck from the petition the allegations as to the relationship of the parties, that is, that the wife of Hickey was a sister of plaintiff and that Hickey and his wife had adopted the defendant; also the allegation that Hickey, frequently talked with plaintiff during the years that the contract was being carried out and told him his reward would be the property. An amended petition was filed substantially the same as the original petition with the exception of the above allegations.

The answer admitted the defendant was the administratrix and heir at law of the estate of Patrick M. Hickey, deceased; that Hickey and plaintiff had been partners in the hardware business; that Hickey had owned the real estate in question. There was a denial of the rest of the petition. There was also an allegation that the district court had no jurisdiction of the case but that whatever claim plaintiff had against defendant was within the jurisdiction of the probate court of Geary county. The answer further alleged that subsequent to the death of Hickey and with full knowledge of all claims which he had plaintiff paid rent at the regular rate to defendant as the administratrix of the estate for four months; that defendant at that time was and had been in possession of the real estate and plaintiff had been her tenant from month to month and by reason of this tenancy plaintiff was estopped to claim title adversely to defendant. The answer also alleged that plaintiff was further estopped to claim that an oral contract was ever made and carried out for him because after the death of Hickey plaintiff often saw defendant and had opportunity to inform her of the alleged contract, but never did so until shortly before this suit was filed and had paid the rent mentioned knowing that plaintiff, as administratrix, was charged with it on her bond and was incurring the expense of inventorying the estate. The answer alleged that plaintiff had failed and refused to pay defendant the rent due from February 1, 1941, to the time of the filing of the suit, which amounted to $600. The answer prayed that plaintiff take nothing by the action and that defendant have judgment against him for $600 as administratrix.

The plaintiff filed a reply wherein he admitted that he had made the rental payment, but alleged that under the arrangement he had with Hickey the hardware firm had paid rent to Hickey in the sum of $75 per month, but plaintiff believed that Hickey left some instrument among his effects carrying out the agreement alleged in his petition, and that when the instrument was discovered defendant would present him with it and there would be no controversy. The reply also alleged that Hickey was a man of large affairs and that on account of the relationship of the parties plaintiff considered it improper to raise the question until defendant had reasonable opportunity to get into the affairs of the estate and that plaintiff did not intend to recognize the title of defendant but only delayed asserting his claim for the reasons given.

The defendant filed a motion to strike certain portions of the plaintiff's reply. This motion was overruled. Defendant then filed a motion for judgment on the pleadings in favor of the defendant individually and for her costs and for $616 as administratrix. This motion was sustained by the court and judgment was given accordingly. The plaintiff has appealed.

The plaintiff argues that the court erred in sustaining defendant's motion to strike. The allegations that were stricken have no bearing on the questions with which this court is dealing and no further attention need be given to this argument.

The plaintiff points...