Garten v. Trobridge

• Decision Date: 09 October 1909
• Docket Number: 16,150
• Parties: ANNA C. GARTEN, et al. v. SARAH E. TROBRIDGE
• Court: Kansas Supreme Court

104 P. 1067

80 Kan. 720

ANNA C. GARTEN, et al. v. SARAH E. TROBRIDGE

No. 16,150

Supreme Court of Kansas

October 9, 1909

Decided July, 1909.

Error from Gray district court; GORDON L. FINLEY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEMURRER--Petition--Insufficient Facts. Where any fact or facts essential to be established by evidence to sustain an action are entirely omitted from the petition a general demurrer to such petition should be sustained, and the overruling of such demurrer is error.

2. DEMURRER--Error Cured by Trial of Issue Not Pleaded. When after the overruling of such demurrer the defendant answers, although his answer in no way cures the defect in the petition, and upon the trial both parties treat the omitted facts as in issue and introduce evidence pro and con thereon, and the issue is determined by the judgment of the trial court, the error will not be regarded here as prejudicial nor will the judgment be reversed by reason thereof.

3. CONVEYANCES--Resulting Trust. The finding and judgment awarding to the plaintiff the land in controversy and decreeing in effect that the defendants inherited from their deceased father only the bare legal title thereto which he held as a resulting trust for the plaintiff, to whom passed the equitable title, is supported by the evidence and is in accord with the statute of trusts and powers. (Gen. Stat. 1901, §§ 7875-7893.)

F. Dumont Smith, for the plaintiffs in error.

Thomas A. Scates, and Albert Watkins, for the defendant in error.

OPINION

SMITH, J.:

Sarah E. Trobridge, the defendant in error, commenced this action in the district court of Gray county by filing the following petition:

"For her cause of action against the above-named defendants plaintiff alleges:

"That said defendants are the only heirs at law of E. S. Garten, late of Gray county, Kansas, deceased.

"That plaintiff is the owner of lots three (3), four (4) and the south half (1/2) of the northwest quarter (1/4) of section two (2), in township twenty-four (24), range twenty-nine (29) west of the sixth principal meridian; that said land is now and for several years last past has been vacant and unoccupied.

"That heretofore, to wit, about the first day of January, 1905, plaintiff purchased said land through E. S. Garten, who at that time was transacting business in said Gray county for her as her agent; that plaintiff furnished all of the money for the purchase of said land, but the legal title thereto was taken in the name of said E. S. Garten, for the use and benefit of plaintiff; that on or about the 15th day of January, 1907, said E. S. Garten departed this life intestate, in said Gray county, Kansas; that said E. S. Garten at the date of his death was the apparent owner of said land as shown by the public records of said Gray county, Kansas, and, by reason of his death as aforesaid, said defendants as his only heirs at law apparently became the owners of said land; that by reason of the apparent descent of the title to said premises to said defendants, as the heirs at law of said E. S. Garten, there was cast upon plaintiff's title to said premises a cloud which hinders, obstructs and embarrasses her in the free use and transfer of said premises, which cloud she is entitled to have removed.

"That by reason of the premises as above set forth said defendants claim to have and are asserting some interest or estate in or to said premises adverse to plaintiff; but plaintiff avers that said defendants have no right, title, interest or estate in or to said premises, either jointly or severally, and that their claims to any estate or interest in or to said premises are wholly without right and are void.

"Wherefore, plaintiff prays judgment against said defendants that her title to said premises be confirmed and adjudged to be valid and perfect; that the interest and estate in or to said premises claimed by said defendants be adjudged to be without right and null and void; that said defendants and each of them and all persons claiming by, under or through them or any one of them since the commencement of this action be forever barred and enjoined from setting up or asserting any right, title, interest or estate in or to said premises or any part thereof adverse to plaintiff, her heirs and assigns; and for such other and further relief as shall be agreeable to equity and good conscience, and for costs of suit."

A demurrer to this petition, on the ground that it did not state facts sufficient to constitute a cause of action by the plaintiff against the defendants, was overruled. The defendants then answered. The case was tried to the court, without a jury. Judgment was rendered for the plaintiff, and the defendants complain.

No express trust is alleged in the petition. The statute of trusts and powers must be considered in determining whether the facts pleaded constitute a resulting trust in favor of the plaintiff. Section 6 of that statute reads:

"When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections." (Gen. Stat. 1901, § 7880.)

Section 8 reads:

"The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase-money or some part thereof." (Gen. Stat. 1901, § 7882.)

The third exception applies to this case. Paraphrasing the two sections, so far as applicable to this case, the statute provides: When it is made to appear that by agreement and without fraudulent intent a conveyance for a valuable consideration is made to one person and the consideration therefor is paid by another a trust results, if the grantee undertakes to hold the title in trust for the person paying the consideration. It will be observed that the petition alleges only that the plaintiff through her agent bought the land and furnished all the money for the purchase-price, and "the legal title thereto was taken in the name of said E. S. Garten, for the use and benefit of plaintiff." There is no allegation that an agreement was made without any fraudulent intent that Garten was to hold the land or any interest therein for the plaintiff. This is a fatal omission, and the demurrer should have been sustained. The statute requires that, to come within the third exception, this must be "made to appear." It can only be made to appear by evidence, and the petition should allege every fact necessary to be affirmatively proved to establish the cause of action. This is elementary law.

That the court erred in overruling the demurrer is clear, and had the defendants stood upon their demurrer the error would have compelled a reversal of any judgment rendered against them. They, however, filed a verified answer, in which, after admitting the death of E. S. Garten and the heirship of the defendants, they denied all the other allegations of the petition and alleged that they were the absolute owners in fee simple of the land in question. This answer did not supply any omission of fact which should have been alleged in the petition, and the question presented is whether the error in overruling the demurrer was prejudicial to the defendants.

On the trial every living person who had anything directly to do with the transaction which resulted in the purchase of the land and the conveyance thereof to Garten was made a witness and was questioned and cross-examined with reference to the consideration paid for the land, for what purpose Garten received the deed of conveyance, and as to the good faith of the transaction. The defendants even introduced Emery, the grantor in the deed to Garten, for the only apparent purpose of proving that the conveyance was made with a fraudulent intent. The consideration to Emery for the conveyance was the payment or partial payment of a debt from him to one Vinson, and his evidence tended to show that Vinson did not take the title himself but had it conveyed to Garten for the purpose of hindering or delaying Vinson's creditors in the collection of their debts. Vinson, however, testified that he had paid all of his indebtedness, except that there was a suit pending against him for $ 500, which was withdrawn; that he told Emery that he owed his sister, the plaintiff, and wanted the land conveyed to Garten to hold for her. This is the only conflict in the evidence. The court evidently credited the testimony of Vinson, and we can not review the case as to the weight of the evidence, the decision of the court being supported by evidence as to this fact.

Had the demurrer been sustained the petition would presumably have been amended by supplying the omitted facts, and the trial would have proceeded as it in fact did. The issue which the omitted facts would have tendered if they had been pleaded was in fact tried to all intents as fully as if the omission had not occurred. We can not, therefore, regard the error in the ruling on the demurrer as prejudicial to the defendants, but will consider the petition as amended in this particular, the only one in which it is contended that it was deficient.

On the trial...