Hurley v. Painter

• Decision Date: 12 April 1958
• Docket Number: No. 40860,40860
• Citation: 182 Kan. 731,324 P.2d 142
• Parties: Joseph HURLEY and Henry J. Ziemba, Appellants, v. J. H. PAINTER et al., Defendants, Emmett Farrell, Appellee.
• Court: Kansas Supreme Court

Page 142

324 P.2d 142

182 Kan. 731

Joseph HURLEY and Henry J. Ziemba, Appellants, v. J. H. PAINTER et al., Defendants, Emmett Farrell, Appellee.

No. 40860.

Supreme Court of Kansas.

April 12, 1958.

Syllabus by the Court.

In an action to establish an oral gift of real estate, the record is examined, and it is held, under the facts and circumstances of this case the trial court did not err in (1) the admission of evidence, (2) the exclusion of certain evidence, (3) its instructions to the jury, (4) refusing certain instructions, (5) overruling a motion for judgment notwithstanding the verdict, and (6) overruling plaintiffs' motion for a new trial.

William H. Stowell, Phillipsburg, Doris Dixon Stowell, Phillipsburg, on the brief, for appellants.

A. W. Relihan, T. D. Relihan and Terry E. Relihan, Smith Center, for appellee Emmett Farrell.

WERTZ, Justice.

This was an action for ejectment, quiet title, accounting and partition. Judgment was for the defendant Emmett Farrell; and plaintiffs, Joseph Hurley and Henry J. Ziemba, appeal. The case is here a second time. In the first appeal, the order of the trial court sustaining a demurrer to defendant Farrell's evidence was reversed and the case was returned for a new trial. (Hurley v. Painter, 180 Kan. 552, 306 P.2d 184.) In order to avoid duplication, that opinion is made a part hereof.

Briefly stated, the facts are as follows: At the time of Ellen Farrell's death on June 3, 1952, record title to 240 acres of land and two city properties in Phillips county stood in her name. Her only heirs at law were plaintiff (appellant) Joseph Hurley, her grandson, and defendant (appellee) Emmett Farrell, her son. More than one year had expired since her death and no will had been admitted to probate. Plaintiff Hurley quitclaimed an undivided one-fourth interest in the described real estate to plaintiff (appellant) Henry J. Ziemba, after which Hurley and Ziemba brought this action against defendant Farrell and others, alleging that said defendant was in possession of the property and praying that he be ejected and the property partitioned according to the interests of the parties (one-fourth to each of the plaintiffs and one-half to the named defendant).

After issues were joined, the parties, at a pretrial conference, entered into a stipulation which bound them in the trial of the case. The substance of the stipulation was that at the time of her death Ellen Farrell was the record title holder of the real estate involved; that probate of a purported will of Ellen's, devising all of the property to her son, Emmett had been sought and denied; that defendant claimed the land by reason of an oral gift from Ellen during her lifetime, which property he claimed to have been in possession of since about 1948 and to have made permanent improvements thereon, paying taxes and liens; and that defendant had lived in one of the city properties with his mother for many years before her death.

Plaintiffs were permitted to file supplemental pleadings alleging that defendant was estopped from claiming to have received the land by oral gift from his mother by reason of his subsequent offer of Ellen's will for probate and his claim that he received the land by inheritance, bequest or devise.

The case proceeded to trial. The jury returned a general verdict for defendant and in answer to special questions found, among other things, that Ellen Farrell in 1948 orally gave all her property to her son, Emmett; that he entered into possession of the land in that year, made valuable and lasting improvements thereon, paid off substantial liens, and otherwise materially changed his position. Plaintiffs' motions for judgment notwithstanding the verdict and for a new trial were overruled, and they appeal. We will summarize only so much of the evidence as is necessary to consider plaintiffs' contentions.

Plaintiffs first contend that the trial court erred in receiving in evidence defendant's Exhibit No. 4 over their objections. The exhibit reads as follows:

'Oct. 12, 1948'

'This is to prove that I have given all my poperty to my sun Emmett Farrell and he is to take care of me as long as i live. H to pay tax and all bills and for burial of me. He is to pay all debt on land that he has not alread paid.'

'Ellen Farrell'

[Emphasis supplied.]

In the course of defendant's examination, he testified, without objection, that he received the exhibit from his mother and that her signature appeared at the bottom thereof. When the exhibit was offered in evidence, plaintiffs objected on the ground that it was hearsay and a part of a personal transaction between defendant and the decedent; that its admission into evidence violated G.S.1949, 60-2804. There is no merit to plaintiffs' contention. It will be noted that there was no objection to defendant's testimony, nor was there any motion to strike it. Plaintiffs' objections went solely to the admission of Exhibit No. 4 and not to the testimony of the witness. G.S.1949, 60-2804 provides that no person shall be allowed to testify in his own behalf in respect to any transaction or communication with a deceased person where either party to the action claims to have acquired title, directly or indirectly, from such deceased person. It has been held that the disqualification of the statute runs to the witness and not to the evidence; that certain communications may be admitted, although certain witnesses may not testify to them. Garten v. Trobridge, 80 Kan. 720, 104 P. 1067; Munger v. Myers, 96 Kan. 743, 153 P. 497.

Here, even if objection had been made to defendant's testimony, the exhibit was admissible, as the witness DeYoung, a banker familiar with Ellen's signature, also testified that the signature on the note was hers. On this and other evidence, the exhibit was properly received. Moreover, in the exhibit, Ellen by declaring that she had given all her property to her son disavowed her proprietary interest in the property. The note was therefore admissible under the well-recognized declaration against interest exception to the hearsay rule. In Mentzer v. Burlingame, 85 Kan. 641, 643, 118 P. 698, 699 we said:

'The declarations of a deceased person, made against his pecuniary or proprietary interest, concerning facts within his knowledge, which are material and relevant to the issue, are admissible in evidence * * *. 1 Ell.Ev. § 434 et seq.; 1 Greenl.Ev., 16th ed., §§ 147-149; 1 Wharton, Ev., § 226; 2 Wig.Ev. §§ 1455-1470. The admissibility of the evidence rests upon the improbability that one will admit that which it is for his pecuniary interest to deny.'

Testimony by witnesses Grieb and Granville that in August, 1950 and September, 1951, respectively, Ellen told them she had given all her property to Emmett is objected to by plaintiffs as being hearsay and therefore inadmissible. Ellen's statements were declarations against her interest and admissible under the abovementioned rule.

Plaintiffs next contend that the court erred in excluding certain exhibits and testimony. Three of the objectins go to the exclusion of newspaper clippings concerning the death of plaintiff Hurley's parents. There was no indication of the purpose for which the exhibits were offered, and we deem them irrelevant. Two other exhibits offered were public records of the Phillips county agricultural stabilization and conservation committee, which showed Ellen Farrell as owner until 1951 of the property involved herein. It was established that the information on the records came from the tenants on the property. It is clear to us that statements made by the tenants were not binding on either Ellen or Emmett and the records were properly excluded. Brent v. McDonald, 180 Kan. 142, 155, 300 P.2d 396.

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