Greenley v. Lilly

• Decision Date: 11 July 1942
• Docket Number: 35591.
• Citation: 155 Kan. 653,127 P.2d 416
• Parties: GREENLEY v. LILLY et al.
• Court: Kansas Supreme Court

127 P.2d 416

155 Kan. 653

GREENLEY v. LILLY et al.

No. 35591.

Supreme Court of Kansas

July 11, 1942

Rehearing Denied Sept. 14, 1942.

Syllabus by the Court.

The statute of limitations cannot be used to uphold a claim for affirmative relief, since such statute is a shield of defense rather than weapon of attack.

Right of action to enforce alleged oral contract to give property to two children of owner if they would look after it and furnish owner a home during her lifetime accrued at time of owner's death, and the assertion thereof for the first time as a defense to action for partition commenced some 16 years after owner's death by another heir of the owner was barred by three-year statute of limitation. Gen.St.1935 60-306, subd. 2.

In heir's action against coheirs for partition of realty owned by intestate at the time of her death, where coheirs in possession of realty claimed all the title thereto under alleged oral contract whereby intestate promised to give them all her property, the statute permitting one in possession to sue to quiet his title at any time did not prevent such claim to the entire title, which was not asserted until some 16 years after owner's death, from being barred by three year statute of limitations, since coheirs were in possession as cotenants of plaintiff and acquired no right as against him to assert title to all of the property by reason of such possession. Gen.St.1935, 60-306, subd. 2, 60-1801.

An heir of an intestate decedent brought an action for the partition of real property owned by decedent at the time of her death. Defendants, who were cotenants, set up a claim to all the title to the property under an oral contract, made with decedent two years prior to her death, that if they would look after her property and furnish her a home she would give them her property, which contract they performed on their part, but which she failed to perform by giving them the property by deed, or will, or in any other manner. Held plaintiff was not precluded from pleading the statute of limitations to the claim set up by defendants.

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Action in ejectment by Jack Greenley against Don Lilly and another for partition of realty and an accounting of rents and profits. From judgment of court ruling upon a question of law in advance of trial holding that pleaded defense was barred by the statute of limitations, defendants appeal.

Judgment affirmed.

George Barrett, of Pratt (Robert G. Miller, of Pratt, on the brief) for appellants.

William B. Hess, of Pratt (Myron S. Steere, of Pratt, on the brief) for appellee.

HARVEY Justice.

This was an action in ejectment for partition and an accounting of rents and profits. Defendants have appealed from a ruling of the court upon a question of law, in advance of the trial, in which the court held the defense pleaded was barred by the statute of limitations.

From the petition it appears that plaintiff is the only child of a deceased daughter of Sarah Ann Lilly, who died intestate May 14, 1925, the owner and in possession of the real property in controversy; that he became 21 years of age in April, 1941, and brought this action in 1941; that defendants are a son and daughter of Sarah Ann Lilly and are in possession of the real property; that plaintiff and defendants are tenants in common, each owning an undivided one-third interest in the property; that defendants withhold possession of the property from plaintiff and refuse to account for rents and profits.

The answer among other things alleged that by a decree of divorce on March 16, 1923, Sarah Ann Lilly became the legal owner of the real property in controversy, and about that time she and defendants entered into an oral agreement, "That the said Sarah A. Lilly would make her home with Don Lilly and Zola Lilly Nell and they would maintain and provide for her the necessities and comforts of life and look after the use and management of her property for the balance of her life, and Sarah A. Lilly, in consideration therefor, would give to these answering defendants the above described real property and all other property she might own at the time of her death"; that defendants carried out this agreement on their part, but "That Sarah A. Lilly made no provision by deed, will or other instrument to convey or devise her property to these answering defendants."

By reply plaintiff denied the oral agreement alleged by defendants and alleged if such an agreement was entered into defendants are barred by the statute of limitations.

For the purpose of having the court rule upon the question of law there was no dispute as to the facts. Plaintiff is the sole grandson of Sarah Ann Lilly and defendants are the sole surviving children. The agreement for maintenance and support and to convey the land was made between Sarah Ann Lilly and defendants in March, 1923, and was fully carried out by defendants. Sarah Ann Lilly died intestate in May, 1925 leaving the plaintiff and the two defendants as her sole and only heirs at law, and without making any devise or conveyance of the land under the agreement. Her estate was probated and the administrator discharged October 10, 1927. Defendants entered into possession of the land some time after the death of Sarah Ann...