Engelbrecht v. Herrington

• Decision Date: 11 May 1918
• Docket Number: 21,007
• Citation: 103 Kan. 21,172 P. 715
• Parties: PETER ENGELBRECHT, Appellant, v. J. B. HERRINGTON, as Executor, etc., Appellee
• Court: Kansas Supreme Court

172 P. 715

103 Kan. 21

PETER ENGELBRECHT, Appellant, v. J. B. HERRINGTON, as Executor, etc., Appellee

No. 21,007

Supreme Court of Kansas

May 11, 1918

Decided January, 1918. [Copyrighted Material Omitted]

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge. Opinion on rehearing filed May 11, 1918. Former opinion adhered to. (For original opinion of affirmance see 101 Kan. 720.)

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Indefiniteness--Objection by Motion. To be available, an objection to the generality or indefiniteness of the averments of a pleading should be raised by motion.

2. EXPRESS TRUSTS IN LAND--How Created. Under the statute, an express trust relating to lands can only be created by a writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.

3. STATUTE OF FRAUDS--Parol Contract for Interest in Land. A parol contract for the sale of lands or of any interest therein is within the statute of frauds and unenforceable unless it is taken out of the statute by some fact or circumstance connected with it.

4. SAME--Parol Contract for Sale of Land--Consideration Paid--When Within the Statute of Frauds. The payment of the purchase price does not take a verbal contract for the sale of lands out of the statute of frauds, nor will the payment of the consideration in service have that effect if the value of the service may be determined and compensation in money may be made therefor.

A. E. Crane, Oscar Raines, R. F. Hayden, and Robert S. Heizer, all of Topeka, for the appellant.

Z. T. Hazen, and R. H. Gaw, both of Topeka, for the appellee.

OPINION OPINION ON REHEARING.

JOHNSTON, C. J.:

A rehearing has been granted in this appeal. On the former hearing the judgment in favor of the defendant was affirmed upon the ground that plaintiff's alleged cause of action was barred by the statute of limitations. (Engelbrecht v. Herrington, 103 Kan. 21, 101 Kan. 720, 172 P. 715.) The rule of law declared in the first opinion is conceded to be correct and applicable in ordinary cases of breach of contract, but it is contended that because of the agreement and conduct of the parties a trust arose in favor of the plaintiff, and that the proceeds of the farm sold by his father in 1909 became a trust fund in the hands of the father, and that the statute of limitations did not run until the plaintiff obtained knowledge of the repudiation of the trust.

First, it is said that the question of the statute of limitations was not sufficiently pleaded to raise an issue in the case. In his answer the defendant set forth a general denial and then alleged that "plaintiff's pretended cause of action is barred by the statute of limitations." The allegation as to this defense is not as specific as it should have been, but no reply was filed and no question was raised as to the sufficiency of the allegation at the trial. An attack as against generality or as to the statement of conclusions of fact in a pleading should be raised by motion, and such an objection is not good even when raised by a demurrer. (Meagher v. Morgan, 3 Kan. 372; L. L. & G. Rld. Co. v. Leahy, 12 Kan. 124; McPherson v. Kingsbaker, 22 Kan. 646; Neosho County v. Spearman, 89 Kan. 106, 130 P. 677.) No objection having been made as to the form and sufficiency of the averment on the trial, nor yet in the brief filed at the first hearing of the appeal, it cannot be raised at this time.

The question then is, Did the contract between the father and son create a trust which prevented the statute of limitations from running against his action? The plaintiff contends that as an express trust is created by agreement which specifically defines the persons, property, and purpose of the trust, the agreement between Andrew Engelbrecht and himself created an express trust, and that in case of such a trust the statute does not begin to run until there has been a denial or repudiation of the trust. The contract sought to be enforced and upon which a trust is claimed was not in writing. It related to lands, and under the statute an express trust concerning real estate can only be created by a writing signed by the party creating the same or by his attorney lawfully authorized in writing. (Gen. Stat. 1915, § 11674; Knaggs v. Mastin, 9 Kan. 532; Gee v. Thrailkill, 45 Kan. 173, 25 P. 588.)

Aside from this objection, the contract is one which cannot be enforced, because of the prohibition of the statute of frauds. Under that statute a contract for the sale of lands or of any interest therein is void and unenforceable if it or some memorandum of it, is not in writing. It is likewise void if it is one not to be performed within a year. As the contract in question was oral, and there is a finding by the jury, which the court adopted, that it was not capable of performance within one year, and further that it was not the intention of the parties that it should be performed within that time, it must be deemed to be void unless it is taken out of that statute by some fact or circumstance in the case. (Gen. Stat. 1915, § 4889.) Plaintiff contends that performance of the contract on his part was sufficient to take it out of the statute. Performance by him is the equivalent of payment of...