Staab v. Staab
| Decision Date | 22 January 1944 |
| Docket Number | 36026. |
| Citation | 158 Kan. 77,145 P.2d 452 |
| Parties | STAAB et al. v. STAAB et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where count of petition, after death of the parties' father, to enforce a trust relating to land purchased by defendant children with the father's money under an oral agreement to hold the land in trust for the father during his lifetime and then to divide it equally among the children, was based upon a confidential relationship between the father and defendants, a transaction induced by that relation, and defendants' breach of the reposed confidence, the count was sufficient. Gen.St.1935, 67-401, 67-406, 67-407, 67-408.
The phrase "without any fraudulent intent", in statute providing in effect that where, by agreement and without any fraudulent intent, a grantee is to hold land in trust for the party paying the purchase money, a trust results in favor of the latter, refers to the grantor or to the party paying the purchase price. Gen.St. 1935, 67-408.
A count of petition, after death of parties' father, to enforce a trust relating to land purchased by defendant children with the father's money under an oral agreement to hold land in trust for father during his lifetime and then to divide it equally among children, was sufficient as to defendant children, notwithstanding count alleged actual fraud of defendant children from the time that they obtained title where the averment was not inconsistent with the father's good faith. Gen. St.1935, 67-401, 67-406, 67-407, 67-408.
Where petition, after death of parties' father, to enforce a trust relating to land purchased by defendant children with father's money under an oral agreement to hold the land in trust for the father during his lifetime and then to divide it equally among the children, was filed within two years after plaintiff children's discovery of defendants' first breach of confidence and actual fraud action was not barred by two-year statute of limitations notwithstanding that land had been purchased more than two years before petition was filed. Gen.St.1935, 60-306, Third.
On demurrer to petition, averments thereof were conceded to be true for the purpose of the demurrer.
Where petition to enforce a trust relating to land purchased by defendant children with the father's money alleged that first defendant took title in name of his wife and second defendant and that wife held title under agreement with the father, petition as against demurrer sufficiently imported knowledge of trust agreement to the wife and she could take no better title than her husband could have taken if title had been taken in his name and could be compelled to account therefor. Gen.St.1935, 67-401, 67-406, 67-407, 67-408.
Where petition in action to enforce a trust disclosed that first defendant's wife claimed no title to the land but was merely a nominal title holder for protection against first defendant's creditors and that other defendants had repeatedly acknowledged the trust wife could not assert the defense of the two-year statute of limitations. Gen.St.1935 60-306, Third.
The limitation statute can be asserted only by one who claims an interest in the subject matter of litigation, and not by one who disclaims it.
Where petition, after death of parties' father, to enforce a trust relating to land purchased by defendant with the father's money under an oral agreement to hold the land in trust for the father during his lifetime and then to divide it equally among the children, contained counts based on breach of a confidential relation between the father and defendant children and actual fraud of defendant children, counts should be tried as one cause of action. Gen.St.1935, 67-401, 67-406, 67-407, 67-408.
The petition in an action to establish and enforce a trust upon the theory it arose by implication of law examined, and held: (1) The petition stated a cause of action against the trustees, and the wife of one of them; (2) the statute of limitations was tolled by the trustees' recognition of the trust after the death of the father who had paid the consideration for land to be purchased and held by the trustees for the benefit of the father during his lifetime and which thereafter was to be divided equally among all his children; (3) the cause of action did not accrue until the repudiation of the trust, in this case the first known breach of the confidence reposed, and the action was commenced in time; (4) actual fraud pleaded in the second count of the petition was discovered concurrently with the breach of trust alleged in the first count and the action, on the theory of actual fraud, was filed in time; (5) the demurrers to the petition were properly overruled.
Appeal from District Court, Ellis County; C. A. Spencer, Judge.
Action by Katherine Staab and others against Alex V. Staab and others to enforce a trust relating to land. From a judgment for plaintiffs, defendants appeal.
See also 145 P.2d 447.
Henry F. Herrman, of Hays (Jerry E. Driscoll, of Russell, on the brief), for appellants.
D. M. McCarthy, of Hays (E. H. Hatcher, of Topeka, on the brief), for appellees.
This was an action to enforce a trust relating to land. Plaintiffs prevailed and defendants appeal.
The action was instituted by Katherine Staab, Julia Staab, Elizabeth Staab Berens, Marie Staab Dwyer, and Alois W. Staab, sisters and a brother of the defendants, Alex V. Staab and John C. Staab. The defendant, Christina Staab, is the wife of John C. Staab.
The petition was originally framed as one count but was later separated into two counts over appellees' objection and as a result of motions filed by appellants to require appellees to elect or separately state and number their respective causes of action. The appeal is from orders overruling defendants' separate demurrers to each count of the third amended petition. The demurrers were all based on four identical grounds. Only two of such grounds are urged by appellants now and it is to them that we shall direct our attention. They are that the facts alleged in each count are insufficient to constitute a cause of action and that each cause of action, if one existed, is barred by the two year statute of limitations. G.S.1935, 60-306, Third.
The parties to this action are the same as those in Staab v. Staab, case No. 36027, Kan., 145 P.2d 447, also decided this day. The two actions were not consolidated in the trial court or in this court. The land involved in the actions is not the same. The facts alleged in the respective petitions are substantially identical as to certain matters. The particulars with respect to which the instant petition differs from the other petition will be noted presently. The material facts pleaded which are common to the petitions in both actions such as the confidential relation between the father and the appellant sons, the conveyance induced by that relation, the facts reflecting recognition of the trust by appellants after the father's death, the dates of such recognitions, the alleged breach of confidence reposed and the date thereof, the alleged fraud and the date of its discovery are all summarized in the opinion in case No. 36,027, ante. Those allegations, being the same as those in the instant case, will be considered as a part of the petition in this case without repetition here.
In case No. 36,027, the father conveyed to appellants, John C. Staab and Alex V. Staab, his sons, certain other lands which he then owned. In the instant case the father did not convey land he already owned. In this case the amended petition, in substance, alleged:
On or about April 18, 1929, there was a half section of land in Ellis county which the father, Carl Staab, desired to purchase; the land was acquired by appellants for the father with the father's money on deposit in a bank and at the father's direction; the land was purchased under the agreement and with the understanding it should be taken in the name of the sons and that they would hold it in trust for the father during his lifetime, account to him for the proceeds therefrom and that at his death they would make equal division of the land among all of the children, plaintiffs and defendants.
The petition, however, further alleged: (Emphasis supplied.)
Before passing on the demurrer of Christina Staab, we shall consider the demurrers of the principal appellants, John C. and Alex V. Staab. They insist the allegations of the first count of the petition do not bring the instant case within our statutory provisions recognizing a trust which arises by implication of law and that therefore (a) the alleged trust is unenforceable and (b) if once enforceable it is now barred by the two year statute of limitations. G.S.1935, 60-306, Third. The pertinent statutes provide:
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Staab v. Staab
...to land. From orders overruling defendants' separate demurrers to each count of the second amended petition, defendants appeal. See also 145 P.2d 452. F. Herrman, of Hays (Jerry E. Driscoll, of Russell, on the brief), for appellants. D. M. McCarthy, of Hays (E. H. Hatcher, of Topeka, on the......