Henks v. Panning

• Citation: 264 P.2d 483,175 Kan. 424
• Decision Date: 12 December 1953
• Docket Number: No. 39118,39118
• Parties: HENKS v. PANNING et al.
• Court: United States State Supreme Court of Kansas

Page 483

264 P.2d 483

175 Kan. 424

HENKS v. PANNING et al.

No. 39118.

Supreme Court of Kansas.

Dec. 12, 1953.

Rehearing Denied Jan. 26, 1954.

Syllabus by the Court.

1. In ruling on a demurrer to evidence a court must construe the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the party adducing it and if such evidence, considered in that manner, will as a matter of law support a judgment in his favor the demurrer should be overruled.

2. When it has been established that one person has acquired an interest in real estate, purchased and paid for by another, at a time when a confidential or fiduciary relationship existed between them, the burden is cast on the person claiming such interest to show affirmatively that it was acquired in good faith, without undue influence, and for a valuable consideration.

3. When a defendant does not stand upon his demurrer to the plaintiff's evidence, and thereafter by his own evidence supplies any deficiency which may have theretofore existed in such evidence, any error in the overruling of his demurrer is cured and becomes immaterial.

4. A judgment which is correct in result will not be disturbed on appellate review even though the reasons given for its rendition are wrong.

5. An appellant must show error of the trial court to his prejudice before a judgment will be reversed.

6. In an action by one of two grantees in a joint tenancy deed against the other grantee, and her husband, to require them to convey any interest they might have acquired in and to the real estate in question by reason of such deed, the record is examined, and held, that under the facts, conditions and circumstances set forth in the opinion (1) the existence of a fiduciary relationship between the two grantees was sufficiently established to cast on the defendant grantee the burden of proving her interest in the real estate was acquired in good faith, without undue influence, and for a valuable consideration; (2) such grantee did not maintain that burden; (3) the trial court committed no reversible error in rendering judgment in accord with the prayer of the petition and in overruling the motion for new trial.

Tudor W. Hampton, Great Bend, argued the cause, and S. R. Blackburn and Jerry M. Ward, Great Bend, were with him on the briefs for appellants.

Don C. Foss, Great Bend, argued the cause, and R. C. Russell and Isabel Obee, Great Bend, were with him on the briefs for appellee.

PARKER, Justice.

This was an action by one of two grantees in a joint tenancy deed against the other grantee, and her husband, to require the latter to convey any interest they might have acquired to the real estate in question by reason of such deed. Plaintiff recovered and the defendants appeal.

The case was tried by the court on issues joined by the pleadings which, under ordinary circumstances, this court would not incorporate in its opinion. However, that seems necessary in view of the unusual situation disclosed by the record.

Omitting formal averments, allegations disclosing that the plaintiff and defendants were all residents of Great Bend and its prayer, the petition reads:

'1. That on or about the 31st day of May, 1951, the plaintiff did execute a limited power of attorney in favor of the defendant Gertrude Panning herein, a true and correct and complete copy thereof being hereto attached and marked 'Exhibit A' and made a part of this petition by reference the same as though set out in full herein. That the said power of attorney was given solely for the purposes as set out therein and principally for the payment of household bills and general expenses including medical expenses of the plaintiff and her husband, the said husband now being deceased. That the defendant Gertrude Panning is a niece of the plaintiff and at all times hereinafter complained of was acting in a fiduciary capacity.

'2. That on or about the 29th day of October, 1951, the defendant Gertrude Panning, acting without any right or authority of any kind whatsoever from the plaintiff, either expressed or implied, did purchase with the use of funds belonging to the plaintiff the following described real property, to-wit: Lot Eight (8) in Block One (1) in Phillips Addition to the City of Great Bend, in Barton County, Kansas, and did take the title to said property in the name of this plaintiff and the defendant Gertrude Panning as joint tenants with the right of survivorship and not as tenants in common as further evidenced by a warranty deed to the said property as shown on the records in the office of the Register of Deeds of Barton County, Kansas, at Book 101, page 620, a true copy of said deed being hereto attached and marked 'Exhibit B' and made a part hereof.

'3. That the aforementioned power of attorney, marked 'Exhibit A' was the only one executed by this plaintiff to the defendant Gertrude Panning or either of the said defendants.

'4. That a written revocation of power of attorney and a written demand on the defendant, Gertrude Panning asking her to convey to the plaintiff all her right, title and interest in and to the above described real property was served upon the defendant Gertrude Panning on or about the 28th day of December, 1951, but that the defendant Gertrude Panning has neglected and refused and still neglects and refuses to convey the said property to the plaintiff.

'5. That all of the acts of the defendants herein complained of by this plaintiff were without the consent, authority and permission of this plaintiff and were without any consideration received by the plaintiff from the defendants.

'6. That the plaintiff believes that the defendant Elmer F. Panning claims an interest in and to the above described real estate, the exact amount and nature of such interest being unknown to this plaintiff. That the defendant, Elmer F. Panning be required to state the amount and nature of his interest in and to the said property and that the defendants and each of them be required to convey the said premises to the plaintiff and that the title to the same be quieted and confirmed in the plaintiff.'

Allegations of the answer, excluding those having no bearing on the issues, are as follows:

'Comes Now the defendants and in answer to plaintiff's amended petition, denies generally each and every allegation, statement, averment and matter contained therein, except as hereafter admitted.

'Defendants admit the residence of the parties and admit all of paragraph number one of plaintiff's amended petition, except that part of the last line wherein plaintiff alleges that 'at all times hereinafter complained of was acting in a fiduciary capacity,' which is specifically denied by these defendants.

'The defendants further admit the execution, delivery and recording of the deed referred to in paragraph two of the amended petition in the manner and form as attached to the plaintiff's petition, but alleges and states that the plaintiff purchased said real estate by her own acts and not by the acts of either of the defendants.

'Defendants further admit paragraph three of the plaintiff's amended petition.

'Defendant Gertrude Panning admits that she is the niece of the plaintiff but specifically denies that at the times alleged in plaintiff's amended petition concerning the purchase of certain real estate that she was acting in a fiduciary capacity and alleges and states that at all times relating to and being a part of the transaction of said real estate described in plaintiff's amended petition, she was not acting under any power of attorney, but was assisting the plaintiff under specific instructions and request of the plaintiff herein, and that all acts pertaining to the transfer of said property was under the direct instructions, consent, authority, control and permission of the plaintiff.

'That the defendant, Elmer F. Panning, does not claim any interest in and to said property, except through his being the husband of the defendant, Gertrude Panning.'

During the course of the trial the court below overruled the defendants' demurrer to plaintiff's evidence and then, after giving consideration to evidence adduced by both the plaintiff and the defendants, rendered judgment granting plaintiff the relief claimed in her petition. Thereupon defendants filed a motion for judgment non obstante and a motion for new trial. When these motions were overruled they perfected their appeal to this court where, under proper specifications of error, they now challenge the judgment; the overruling of their demurrer to the evidence; and the adverse rulings on the motions to which reference has heretofore been made.

Preliminary to discussing what we regard as the issues decisive of this case we are compelled to note that inherent in all errors assigned by the appellants is the basic claim that the appellee, a woman 74 years of age, who testified in her own behalf, was a person of unsound mind at the time she was produced for examination; that therefore, under the provisions of G.S.1949, 60-2805, First, she was incompetent to testify; that it was error to refuse to strike her testimony and give it consideration. Resort to the record reveals the trial court made several express statements during the course of the trial, another at the time of the rendition of its judgment, and still another on the occasion of its ruling on the motion for new trial, all to the effect it felt and had the opinion appellee was incompetent. In the face of these statements we are unwilling to say it was proper to permit this testimony to stand or give it weight in arriving at its decision and judgment. However, under the confronting facts and circumstances, it does not necessarily follow, as the appellants contend, that this action on the part of the trial court constituted reversible error.

Thus, and without giving consideration to statements made by the appellee while testifying as a witness, we turn again to the...