File v. Conzelmann

• Court: Kansas Supreme Court
• Writing for the Court: MASON, J.:
• Citation: File v. Conzelmann, 106 Kan. 345, 187 P. 878 (Kan. 1920)
• Decision Date: 07 February 1920
• Docket Number: 22,500
• Parties: GEORGE FILE, Appellee, v. LIZZIE CONZELMANN et al., Appellants

187 P. 878

106 Kan. 345

GEORGE FILE, Appellee, v. LIZZIE CONZELMANN et al., Appellants

No. 22,500

Supreme Court of Kansas

February 7, 1920

Decided January, 1920.

Appeal from Jewell district court; RICHARD M. PICKLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PURCHASE OF REAL ESTATE--Title Taken in Name of Wife--Resulting Trust in Favor of Husband--Pleadings. A demurrer to a petition was overruled, although an essential allegation was lacking. In a trial without a jury testimony to support such an allegation was admitted over objection. Pending the decision of a demurrer to the plaintiff's evidence the court permitted the petition to be amended to conform to such testimony. Held, that no reversible error was committed, inasmuch as the defendants were not denied an opportunity to make a full showing, and do not appear to have suffered any substantial prejudice.

2. SAME--Evidence. In an action in which one of the issues was whether a husband in causing a deed to be made to his wife who had since died, was actuated by a fraudulent intent, his testimony that his purpose was not to defraud creditors, but to enable his wife to handle the property during his sickness, was not open to objection under the rule relating to transactions had with a person since deceased.

3. SAME--Evidence. The evidence held to be sufficient to support the judgment.

W. D. Vance, and R. E. McTaggart, both of Belleville, for the appellants.

R. W. Turner, and Donald F. Stanley, both of Mankato, for the appellee.

OPINION

MASON, J.:

In January, 1903, George File negotiated the exchange of eighty acres of land which he owned, with $ 1,500 boot money, for a quarter section, the deed to which he caused to be made out to his wife. A year or so later he and his family moved upon the land so acquired, where they resided until the death of his wife, intestate, in 1917. The next year he brought an action against the heirs of his wife asking that he be decreed to be the owner of the tract, on the ground that, without any fraudulent intent on the part of either, his wife had agreed with him to hold it in trust for him. Judgment was rendered in his favor, and the defendants appeal.

1. The petition in the form in which it existed when the case came to trial alleged that the plaintiff's wife had held the title in trust for him, but did not allege that this was by agreement and without fraudulent intent--allegations which were necessary to bring the case within the statutory exception to the rule against the creation of oral trusts with respect to realty. (Gen. Stat. 1915, § 11681; Garten v. Trobridge, 80 Kan. 720, 104 P. 1067.) The trial court overruled a demurrer to this pleading and also an objection to the admission of any evidence under it. Pending the hearing of a demurrer to the plaintiff's evidence the plaintiff was permitted to amend his petition to conform to the evidence, and the omitted allegations were then added. The defendants claim that inasmuch as they had made timely objections to the evidence referred to, the amendment ought not to have been permitted, and could not be regarded as curing the defect. They cite in support of this contention Walker v. O'Connell, 59 Kan. 306, 52 P. 894. There the amendment was made after the return of a verdict by a jury. Here the trial was by the court, and the pleading was amended before the defendants began the introduction of evidence. No opportunity to meet the issue was denied them and we regard it as clear that they suffered no prejudice from the amendment, which removed the objections previously made to the pleading. (Sutter v. Harvester Co., 81 Kan. 452, 456, 106 P. 29; Wolf v. Wolf, 88 Kan. 205, ...