Lofland v. Croman

• Decision Date: 06 July 1940
• Docket Number: 34793.
• Parties: LOFLAND v. CROMAN.
• Court: Kansas Supreme Court

103 P.2d 772

152 Kan. 312

LOFLAND v. CROMAN.

No. 34793.

Supreme Court of Kansas

July 6, 1940

Syllabus by the Court.

The ruling on a motion to make definite and certain ordinarily rests in the trial court's sound discretion and therefore, is ordinarily not reviewable, but where the ruling constitutes an abuse of sound judicial discretion and prejudices a substantial right, it is reviewable.

Where a petition is properly attacked by motion to make definite and certain, with a view of ascertaining the theory on which relief is sought, and the plaintiff successfully resists the motion, the petition, on demurrer, is then subject to critical analysis and is strictly construed against the plaintiff.

A plaintiff is required to frame a petition on some distinct and definite theory and the facts alleged on that theory must state a good cause of action.

In action to set aside a deed executed and delivered by plaintiff to defendant and to set aside a mortgage executed and delivered by defendant to plaintiff, and to bar defendant of all interest in the land, on ground that the transaction created a trust in favor of plaintiff, defendant's motion to make the petition definite and certain by requiring plaintiff to state whether plaintiff was relying on an express trust in writing or whether she was relying only on the theory that a trust was created by operation of law should have been granted.

After a proper motion to make material allegations of a petition more definite and certain has been overruled, such pleading cannot, in respect to such allegations, be upheld against a general demurrer, unless it fairly states a cause of action on some definite theory without resort to inferences or the construction of doubtful language.

1. Plaintiff is required to frame a petition upon some distinct and definite theory and upon that theory the facts alleged must state a good cause of action.

2. Where a petition is properly attacked by motion to make definite and certain with a view of ascertaining the theory upon which relief is sought, and plaintiff successfully resists the motion, then the petition, upon demurrer, is subject to critical analysis and is strictly construed against the plaintiff.

3. After a proper motion to make material allegations of a petition more definite and certain has been overruled, such pleading cannot, in respect to such allegations, be upheld against a general demurrer unless it fairly states a cause of action upon some definite theory without resort to inferences or the construction of doubtful language.

4. The petition in an action to obtain relief upon some trust theory, examined and held: (1) the petition, although alleging a resulting trust was created, constituted such commingling of theories as to make it uncertain upon what theory plaintiff actually sought relief; (2) the motion to make the petition definite and certain was studiously resisted by plaintiff, and was, in part, improperly overruled as to a material matter; (3) the demurrer to the petition was improperly overruled.

Appeal from District Court, Shawnee County, Division No. 3; Otis E Hungate, Judge.

Action by Nellie A. Lofland against Ida M. Croman to set aside a deed and a mortgage. From a judgment overruling defendant's demurrer to plaintiff's amended petition the defendant appeals.

Judgment reversed, with directions to the trial court.

Frank H. McFarland, of Topeka, for appellant.

James Malone and Clarence Malone, both of Topeka, for appellee.

WEDELL Justice.

This was an action to set aside a deed executed and delivered by plaintiff to defendant and to also set aside a mortgage on the land described in the deed, which mortgage was executed and delivered by defendant to plaintiff, and to bar defendant of all title or interest in the land on the ground that the transaction described by plaintiff created a trust in the land in favor of the plaintiff.

The petition was first challenged by a motion to make definite and certain. The principal purpose, of that motion was to make the petition disclose the nature and character of the trust relied upon in order that defendant might properly prepare his defense. Two paragraphs of the motion were successfully resisted by plaintiff. The other paragraph of the motion was sustained. When plaintiff filed her amended petition she did not comply with that portion of the motion which was sustained but omitted from the amended petition that portion of the petition to which the court sustained the motion. The result was that defendant obtained none of the information she had sought in her motion.

Thereafter, defendant lodged a general demurrer to the amended petition. The demurrer was overruled. Defendant has appealed from the ruling and urges that in view of the fact the principal portion of her motion was successfully resisted to her prejudice, plaintiff is not now entitled to have the petition, together with inferences to be drawn therefrom, liberally construed in her favor but that on the contrary the averments in the amended petition must now be strictly construed. She contends the petition was not drawn upon any one clear and definite theory but that on the contrary, although the petition in part claims relief on the ground of a resulting trust, various trust theories were deliberately commingled with the hope that plaintiff might obtain the desired relief upon some theory.

Only a few allegations were added to the amended petition. The additions contained in the amended petition will be inserted in parentheses. The words "and admissions", contained in the original petition and which were attacked by motion to make definite and certain, which words were omitted from the amended petition, will be italicized. The petition omitting caption and description of property, reads:

"Comes now the plaintiff, Nellie A. Lofland and states that she is a resident of Kansas and that her correct postoffice address is Topeka, Kansas; and that the defendant, Ida M. Croman, a widow, is a resident of California and that her correct postoffice address is San Gabriel, California.

"For her cause of action against the defendant, plaintiff alleges and states: that on May 28th, 1912, this plaintiff acquired fee simple title by warranty deed, recorded on June 15th, 1912, in Book 385 on page 281 of the Register of Deeds office of Shawnee County, Kansas, to the following described real estate: [Description of Real Estate follows] that this plaintiff paid the balance of the purchase price in the amount of $1,500.00 for the above described real estate, and acquired title thereto for the purpose of providing a home for her widowed mother, Ellen Costello, as long as she would live.

"Plaintiff further alleges that on the 16th day of July, 1913, she married Joseph M. Lofland; that shortly after her marriage this plaintiff discovered that her husband was inclined to squander his money and she was seized with a fear that some day he might attempt to compel this plaintiff to sell or mortgage the above described real estate before the death of her mother or otherwise make it impossible for this plaintiff to keep this property as a home for her mother as long as her mother lived; that this plaintiff wrote to her sister, Ida M. Costello, who is the defendant and who at that time was unmarried and living in California; that after an exchange of several letters, this plaintiff decided, (without any fraudulent intent), to convey the above described real estate to the defendant to be held by the defendant until the death of the mother; that the plaintiff executed a deed on or about the 16th day of October, 1913, which deed is recorded October 18, 1913, in Book 396 on page 339 of the Register of Deeds office, Shawnee County, Kansas, whereby this plaintiff conveyed the above described real estate to the defendant; that this deed was made without consideration of any kind and solely for the purpose of holding said real estate until the death of the mother; that the relationship between the plaintiff and the defendant was purely confidential and fiduciary (and the conveyance from the plaintiff to the defendant was brought about and induced by such relation;) and (that) it was known, intended, understood and agreed by and between both parties that this conveyance was made only for the purpose of protecting this real estate during the lifetime of the mother.

"Plaintiff further alleges that in order to make the said transaction between herself and the defendant appear more regular and to protect this plaintiff's interest in said real estate the defendant executed to the plaintiff a mortgage in the amount of $1,500.00 which mortgage was recorded in Book 391 at page 354 of the Register of Deeds office, Shawnee County, Kansas; that said mortgage was entirely without consideration and this plaintiff received no money whatsoever from the defendant in this transaction.

"Plaintiff further alleges that the entire transaction between the plaintiff and the defendant was done without the knowledge of the plaintiff's husband, Joseph M. Lofland, and this plaintiff specifically denies that the above described deed to the defendant was signed by either Joseph M. Lofland or his duly authorized agent.

"Plaintiff further alleges that the mother lived for a few years upon the above described premises, after which she moved to the home of Louis Costello of Topeka, Kansas, a brother of the parties to this action; that the said real estate was then rented and the rental was received by Louis Costello to take care of the expense of keeping the mother; that this arrangement continued until December 16, 1937, when the mother died.

"Plaintiff further alleges that the defendant (then) wrote the plaintiff asking the plaintiff and her

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