Pease v. Snyder, 38482

• Decision Date: 26 January 1952
• Docket Number: No. 38482,38482
• Citation: 240 P.2d 134,172 Kan. 257
• Parties: PEASE v. SNYDER.
• Court: Kansas Supreme Court

Page 134

240 P.2d 134

172 Kan. 257

PEASE v. SNYDER.

No. 38482.

Supreme Court of Kansas.

Jan. 26, 1952.

Syllabus by the Court.

1. Although the general rule is that the bar of statute of limitations must be pleaded to be available as a defense, a pleading which shows on its face that the cause of action is barred by the statute of limitations is demurrable.

2. Under the code of civil procedure there is no pleading subsequent to a reply except a demurrer to it (G.S.1949, 60-703, 718, 748).

3. When the allegations of a cause of action as set forth in the petition, and of new matter as set forth in the reply, are so broad they cannot be met by a demurrer, the defendant may await proof of facts, or failure thereof or other showing, in the plaintiff's evidence, which will strip the cause of action down to the bare facts where the pertinency of the statute of limitations becomes apparent and then interpose a demurrer to that evidence on that ground.

4. An action to set aside a conveyance of real estate as being in fraud of the creditors of the grantor must be commenced within two years from the discovery of the fraud.

5. The constructive notice resulting from the recording of an alleged fraudulent deed is sufficient to start the running of the statute of limitations against the creditors of the grantor.

6. The record examined in an action in the nature of a creditor's bill, and held, that the evidence disclosed the action was barred by the statute of limitations.

Archie T. MacDonald, of McPherson, argued the cause, and Daniel O. Lardner, of Fort Scott, and Russ B. Anderson, of McPherson, were with him on the briefs for appellant.

Howard Hudson, of Fort Scott, argued the cause, and Douglas Hudson and Douglas G. Hudson, both of Fort Scott, were with him on the briefs for appellee.

THIELE, Justice.

On October 22, 1946, plaintiff commenced an action in the nature of a creditor's bill to subject the alleged interest of J. R. Snyder in certain real estate to the payment of a money judgment against him in favor of the plaintiff. Leila M. Snyder, wife of J. R. Snyder, and one of the defendants, filed a motion for judgment on the leadings and that motion being denied she appealed to this court which concluded her motion was not tantamount to a demurrer and dismissed her appeal, Pease v. Snyder, 166 Kan. 451, 201 P.2d 661. Thereafter, the cause was tried in the district court which concluded, among other things, that a purchase by Leila M. Snyder from the purchaser at a tax foreclosure sale amounted to a redemption in favor of her cotenant, J. R. Snyder, the judgment debtor, and that his interest was subject to appropriation for payment of the judgment debt. The Snyders appealed to this court, which in substance held that the tax foreclosure proceedings cut off the rights of the cotenants and that Leila M. Snyder by a subsequent purchase from the purchaser at the tax foreclosure sale took a good title as against her former cotenants. The judgment of the trial court was reversed and a new trial ordered. Pease v. Snyder, 169 Kan. 628, 220 P.2d 151.

The trial, out of which the present appeal arises, was upon the issues as originally joined by the pleadings. For present purposes it may be said that plaintiff alleged that he recovered a judgment against defendant J. R. Snyder on October 29, 1943; that the defendants Snyder were cotenants of the real estate in question; that the real estate was sold at tax foreclosure sale to Leo W. Bohon and Helen E. Bohon who conveyed it to Leila M. Snyder and that she held the title for herself and J. R. Snyder. The petition did not allege the dates these deeds were recorded. The answer of Leila M. Snyder contained a demurrer that the petition stated no cause of action, a general denial, and allegations of facts as to how she acquired title by purchase from the Bohons, and that after acquiring title she had contracted to sell the real estate to the defendants Grimm. She prayed that her title be quieted. The defendant Grimm answered that they had contracted under date of March 1, 1946, to purchase the real estate for the sum of $4,725. The plaintiff replied to the answer of Leila M. Snyder and alleged at length that the funds used in completing the purchase from the Bohons were the funds of J. R. Snyder and his attempted release of his interest in the real estate was for the purpose of hindering, delaying and defrauding plaintiff, a creditor of defendant John R. Snyder. The reply did not allege when Pease discovered any of the facts relied on as showing fraud.

During the course of the trial, and at the close of plaintiff's evidence, the defendants Snyder demurred thereto on various grounds, including that if any cause of action was shown, it was barred by the statute of limitations. This demurrer was overruled, the trial proceeded and at its close the court made findings of fact and conclusions of law, and in substance that J. R. Snyder and Leila M. Snyder fraudulently conspired to manipulate the title to the real estate in such manner as to keep it beyond the reach of the creditors of J. R. Snyder; that the proceeds from the sale of the real estate to the Grimms were amenable to the satisfaction of the Pease judgment against J. R. Snyder, and Pease should be given a lien against the real estate provided it did not exceed one-half of the contract price, and judgment was rendered accordingly.

Defendant Leila M. Snyder filed her several motions to set aside and modify certain conclusions of fact and law; that certain suggested conclusions be adopted; that certain evidence be stricken; and for a new trial. Some slight changes were made in the court's conclusions, but generally the several motions were denied. On motion of Leila M. Snyder the judgment against her was set aside but another of like character was immediately rendered and in due time Leila M. Snyder perfected her appeal to this court, specifying as error the ruling on her demurrer to plaintiff's evidence, the ruling on her motion for a new trial and other post trial motions and the rendition of judgment against her.

Appellee includes in his counter-abstract a motion that the appeal be dismissed for the reason that after appellant's motion for a new trial and other motions were heard the trial court, although overruling those motions generally, did set aside the judgment and later render another...