Rasmussen v. Rasmussen

• Decision Date: 10 December 1938
• Docket Number: 33849.
• Citation: 148 Kan. 649,84 P.2d 919
• Parties: RASMUSSEN v. RASMUSSEN et al.
• Court: Kansas Supreme Court

84 P.2d 919

148 Kan. 649

RASMUSSEN v. RASMUSSEN et al.

No. 33849.

Supreme Court of Kansas

December 10, 1938

Syllabus by the Court.

In action to establish title on theory of constructive trust, to recover rents and profits and to eject defendant from land which was tried to court without jury, the court was the trier of facts.

In divorced wife's action to establish title to realty on theory of constructive trust, for rents and profits and to eject divorced husband, evidence justified decree denying relief sought on ground that constructive trust did not arise out of postnuptial agreement under which wife was to take realty and redeem it from sheriff's sale within 60 days and husband's acquisition of title from holder of certificate of sale after wife failed to redeem.

The record in an action to establish plaintiff's title to land on the theory a constructive trust was created therein in her favor, examined and Held: (1) The court was the trier of the facts; and (2) where, as in the instant case, there is substantial competent evidence to support the judgment, this court will not disturb it on appeal.

Appeal from District Court, Clay County; Edgar C. Bennett, Judge.

Action by Anna M. Rasmussen against Theodore C. Rasmussen and others to establish in plaintiff title to land on theory of constructive trust, for rents and profits from land and to eject the named defendant therefrom. Judgment for defendants and plaintiff appeals.

Fred R Smith and Gerald F. Smith, both of Manhattan, Raymond E Smith, of Marysville, Frank H. Meek, of Clay Center, and A. Harry Crane and Ward D. Martin, both of Topeka, for appellant.

W. M. Beall, of Clay Center, for appellees.

WEDELL Justice.

This action was instituted to establish title in the plaintiff to land on the theory of a constructive trust. Plaintiff, also, sought to recover certain rents and profits from the land, and to eject the principal defendant, Theodore C. Rasmussen, her divorced husband, therefrom. Plaintiff has appealed from a ruling sustaining defendants' demurrer to plaintiff's evidence on the question of title and from the general judgment in favor of defendant Rasmussen on the issue of rents. The relationship of other defendants to certain transactions will be disclosed in the course of the opinion.

The material averments of plaintiff's petition were in substance as follows: Plaintiff and the defendant Theodore C. Rasmussen were married in 1895. Plaintiff was entirely inexperienced in business matters. By reason of the intimate and confidential relationship, defendant knew of plaintiff's aversion and obsession against signing notes and mortgages. In about the year 1931, difficulties and disagreements arose between them, and defendant conceived the plan of obtaining his freedom from plaintiff, and preventing plaintiff from receiving any property owned by the parties. Defendant planned, connived and conspired to effect and enter into a property settlement with plaintiff under a post-nuptial agreement, whereby, owing to plaintiff's aversion to signing notes and mortgages, he would obtain the property which plaintiff would receive under his contemplated post-nuptial agreement. In keeping with such a scheme, defendant Rasmussen induced defendants M. M. Smith, C. C. Smith and R. O. Smith to loan to him certain sums of money in order to carry out his plan. The plan was to have plaintiff promise in the post-nuptial agreement to take the particular property herein involved, to-wit: The southwest quarter of section 11, township 7, of Clay County, Kansas, which land had been sold under mortgage foreclosure by the Farmers & Merchants State Bank of Morganville, Kansas, which bank then held a certificate of purchase therefor. The plan was further to have plaintiff agree to fully pay and discharge the amount of the foreclosure judgment, which, by reason of plaintiff's aversion to signing notes or mortgages, the defendant Rasmussen had reason to believe she would not do. Defendant, therefore, on or about January 8, 1932, arranged with one C. C. Smith, one of the defendants herein, to buy the certificate of purchase and to sell it to him (Rasmussen), with the result that he would acquire the title to the land in question. Pursuant to such plan and scheme, plaintiff did, at the request of the defendant, enter into such a post-nuptial agreement. Among other things, that agreement provided plaintiff should receive from the defendant a quitclaim deed to the property heretofore mentioned, and that she was to have the right to redeem the same. The mortgage on this particular land had been signed by the defendant alone. On April 25, 1932, defendant filed an action for divorce against the plaintiff and therein requested the court to declare an emergency and, as grounds therefor, stated that he desired to refinance the properties he had received under the post-nuptial contract. That application showed defendant knew of plaintiff's aversion to signing notes and mortgages. An emergency was declared, the divorce was granted, and the post-nuptial agreement entered into on January 23, 1932, was approved by the court, with the result that plaintiff received only the property above mentioned.

That about April 6, 1934, the plaintiff failed to redeem the property, which she was to receive by reason of the post-nuptial agreement and decree of divorce, by reason of her business inexperience and aversion to signing notes and mortgages. On April 7, 1934, a sheriff's deed was executed and delivered to defendant C. C. Smith. Pursuant to defendant's plan and conspiracy to defraud plaintiff, the defendant Rasmussen obtained a warranty deed to the property on April 11, 1934. That deed purported a consideration of $2,200. On April 11, 1934, the defendant Rasmussen executed and delivered to the defendants M. M. Smith, C. C. Smith and R. O. Smith his note and mortgage in the sum of $2,300 covering that real estate. In this manner the defendant Rasmussen completed his plan and conspiracy to obtain a divorce from plaintiff and also prevented her from receiving any of their property. That by reason of defendant's plan and conspiracy and the fraud perpetrated upon the plaintiff, the defendant Rasmussen should be declared to be the trustee ex maleficio of the property involved, and plaintiff should have the property subject only to the lien of the foreclosure judgment with interest. At all times since January 23, 1932, the land was of the fair value of $6,500, with the result that defendant has unjustly and inequitably benefited himself through the plan herein described. That the defendants M. M. Smith, C. C. Smith and R. O. Smith took from the defendant Rasmussen the above mentioned note and mortgage for $2,300, with knowledge of the fraudulent purpose and acts. That such mortgage should be canceled and those mortgagees should be entitled to a lien only for such sum as was actually paid upon the original foreclosure judgment with interest, taxes and costs, which amounts plaintiff now offered to assume and agreed to pay. That on July 9, 1932, plaintiff made demand in writing upon the defendant Rasmussen for the return of the property.

The second cause of action was for rents and profits. After incorporating the allegations contained in the first cause of action, it alleged in substance: Plaintiff had never recorded the quitclaim deed she received to the property. During the period of the equity of redemption nor at any time since had she received any income from the property except for the year 1932. Defendant had received all income since January 23, 1932 in the sum of at least $2,000 and should be required to account to plaintiff therefor.

The third cause of action was one in ejectment. It incorporated the allegations contained in the first cause of action and alleged plaintiff was the lawful owner of the property, that the defendants Arthur Cyr and his wife were in the possession thereof as tenants of the defendant Rasmussen, and that they should be ejected therefrom and plaintiff placed in possession.

The verified answer of the defendant Rasmussen was as follows:

"That the relationship of principal and agent did not exist between plaintiff and defendants Theodore C. Rasmussen regarding the possession and management of the real estate involved. That defendants admitted the marriage, the foreclosure sale and buying of the certificate of purchase by Clay C. Smith, the execution of the post nuptial contract, the suit for divorce by Theodore C. Rasmussen, the granting of an emergency, the entry of a decree of divorce, the issuance of a sheriff's deed to the land involved, and that the property was sold to Theodore C. Rasmussen all as alleged in plaintiff's petition.

"That March 1st, 1918, Anna M. Rasmussen sued Theodore C. Rasmussen for separate maintenance; that she alleged that for nearly two years she and her husband had not lived together and that because of his conduct to her she was unable to live with him as her husband without fear for her personal safety and that her health and peace of mind required that she live separate from Theodore C. Rasmussen, a copy of said petition being attached and marked Exhibit A; that from the time of such suit for separate maintenance up to the time of the divorce the Rasmussens had never lived together as husband and wife, there was no reconciliation; that they lived apart as if they were strangers and that plaintiff's attitude toward Theodore C. Rasmussen was hostile and that no fiduciary or confidential relation existed between said parties."

Plaintiff's reply contained a general denial and, in addition thereto, the following:

"Plaintiff admitted that she had brought suit for separate maintenance but alleged that such suit was later dismissed but

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