Duncan v. Johnson
| Decision Date | 08 March 1913 |
| Docket Number | 17,833 |
| Citation | 130 P. 655,89 Kan. 21 |
| Parties | JOSEPH DUNCAN, Appellee, v. JOHN L. JOHNSON, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1913.
Appeal from Saline district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. SPECIAL FINDINGS--Should Contain Conclusion of Facts--Not the Evidence Thereof. Special findings should contain the facts and not the evidence thereof, but when it appears that the trial court must have believed the things shown by such evidence, no prejudicial error was committed in refusing to find the ultimate facts instead of their evidentiary basis.
2. CONFLICTING CLAIMS--Conflicting Evidence--Decision Must Stand. Two conflicting claims were made respecting a land transaction, one amounting to an ownership in common, the other to a separate title in the defendant. Each claim was supported by competent evidence and the trial court, having seen and heard the claimants, believed the former, and decided accordingly. Held, that such decision must stand.
3. RESULTING TRUST -- Under Verbal Agreement -- Statute of Frauds. When two parties purchase a tract of land for their mutual profit and the consideration is paid by one of them and the deed made to him with the verbal agreement that he is to hold for both unless other arrangements are subsequently made, the statute of frauds does not preclude an action by the other party to be adjudged the owner of an undivided one-half of the land, and for an accounting.
David Ritchie, and Z. C. Millikin, both of Salina, for the appellant.
C. W Burch, and B. I. Litowich, both of Salina, for the appellee.
Duncan sued Johnson for an adjudication that he was the owner of the undivided half of the land in controversy and for an accounting, alleging that after certain transactions and agreements the deed was made to the defendant, who paid the purchase price upon the understanding that in case he should not conclude to keep the land for his own he should be repaid plaintiff's share of the purchase money, but otherwise he could make settlement when they had agreed upon the terms, and that until such determination and settlement he was to hold the title for the benefit of both. The court made findings of facts and concluded as a matter of law that plaintiff was the owner of an undivided half of the quarter section involved, and that he should pay the defendant $ 2121.75 with interest, which should be a lien upon the land. It was found that the parties entered into a partnership for the purpose of speculating in real estate, and purchased the land for that purpose.
The principal contention centers upon finding No. 13, which was as follows:
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Potucek v. Blair
...relations of the coadventurers with respect to the properties involved and was not affected by the statute of frauds. Duncan v. Johnson, 89 Kan. 21, 130 P. 655; Crawford v. Forrester, supra, 108 Kan. at page 223, 194 P. 635. Although oil and gas leases as between a leasor and lessee are wit......
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Shoemake v. Davis
... ... estate. Bird v. Wilcox, 104 Kan. 799, 180 P. 774; ... Goodrich v. Wilson, 106 Kan. 452, 188 P. 225; Duncan ... v. Johnson, 89 Kan. 21, 130 P. 655." ... Other ... authorities are to the same effect. One of the headnotes to ... Felbel v. Kahn, ... ...
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Terry v. Simmons
...even though the land itself is involved in the litigation. Ingram v. Johnston, 38 Cal.App. 234, 176 P. 54 (1918); Duncan v. Johnson, 89 Kan. 21, 130 P. 655 (1913); Bakke v. Keller, 220 Minn. 383, 19 N.W.2d 803 (1945); Lanier v. Looney, 2 S.W.2d 347 (Tex.Civ.App.1928). In other cases the sam......
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Crawford v. Forrester
... ... it dealt with the personal relations of joint adventurers, ... and not with the sale of real estate. (Duncan v ... Johnson, 89 Kan. 21, 130 P. 655; Bird v ... Wilcox, 104 Kan. 799, 180 P. 774; Goodrich v ... Wilson, 106 Kan. 452, 188 P. 225.) ... ...