Staab v. Staab

• Decision Date: 10 November 1945
• Docket Number: 36312.
• Citation: 160 Kan. 417,163 P.2d 418
• Parties: STAAB et al. v. STAAB et al.
• Court: Kansas Supreme Court

163 P.2d 418

160 Kan. 417

STAAB et al. v. STAAB et al.

No. 36312.

Supreme Court of Kansas

November 10, 1945

Appeal from District Court, Ellis County; C. A. Spencer, Judge.

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 an order sustaining defendants' demurrers to plaintiffs' evidence, the plaintiffs appeal.

Reversed.

Syllabus by the Court.

1. Under the pleadings in an action to enforce a trust relating to land plaintiffs were required to prove: (1) The existence of a confidential relation between the aged and uneducated father and the defendant sons; (2) a transaction induced by that relation; and (3) a breach by the sons of the confidence reposed.

2. In order to decree the relief sought in an action such as that described in paragraph one of the syllabus plaintiffs' evidence should be carefully weighed and must be clear and satisfactory. On a demurrer, however, courts are not permitted to compare portions of such evidence or to weigh it but must accept it as true, consider only the favorable portions thereof and resolve all inferences which reasonably may be drawn therefrom in favor of the plaintiffs. If, when so considered, the evidence fairly tends to establish a cause of action the demurrer should be overruled.

3. The record in an action such as that described in paragraph one of the syllabus examined, and held: (1) The elements of the constructive trust were sufficiently established to withstand a general demurrer; (2) the statute of limitations was tolled by the trustees' recognition of the trust; (3) the cause of action did not accrue until the repudiation of the trust and (4) the action was not barred.

Earl H Hatcher and Clayton M. Davis, both of Topeka (C. R. Holland of Russell, and D. M. McCarthy, of Hays, on the brief), for appellants.

Henry F. Herrman, of Hays, and Jerry E. Driscoll, of Russell, for appellees.

WEDELL Justice.

This was an action to enforce a trust relating to land. Defendants' demurrers to plaintiffs' evidence were sustained and plaintiffs appeal.

The appellants are five heirs at law of the decedent, Carl Staab. Appellees are two heirs at law, sons of decedent, and the wife of one of them. This case was previously before us on a demurrer to the petition which the trial court overruled. We affirmed that ruling. Staab v. Staab, 158 Kan. 77, 145 P.2d 452. At the same time we also affirmed an order overruling a demurrer to a petition in a related case between the same plaintiffs and the decedent's sons, John and Alex Staab, involving other lands owned by the decedent which he deeded to the above named sons. Staab v. Staab, 158 Kan. 69, 145 P.2d 447.

The petition in the instant case was framed in two counts. The first count was predicated on the theory of a constructive trust which grew out of an alleged oral contract made in 1929 between the father and the defendants, John and Alex Staab, in which the father was alleged to have furnished the purchase price for the one-half section of land involved with the understanding the father was to have the income therefrom during his lifetime, that John and Alex were to hold the title to the land in trust for him and at his death they were to divide the land among his seven children, share and share alike. It was also alleged, however, that the deed was made to Alex and Christina Staab, the wife of John Staab, instead of to Alex and John for the reason that there was a judgment outstanding against John which they did not want enforced against the land in question. It was further alleged:

'Christina Staab claimed no title to the land, has no interest therein, and has exercised no control over it, but held it for John C. Staab under the agreement which John C. Staab and Alex V. Staab had made with their father, Carl Staab.'

Our statutes relating to the enforcement of trusts arising by implication of law were treated in the former opinions in the Staab cases, supra, and what was said upon that subject need not be repeated at length here.

The second count of the petition was based on actual fraud, it being in substance alleged the defendant sons at the very time of obtaining the deed in 1929 had no intention of carrying out the trust agreement made with their father but fraudulently acquired the title to the land themselves. The trial court sustained the demurrers to the evidence with respect to actual fraud and appellants do not claim error in that respect.

The grounds of the three separate demurrers were: (1) The evidence failed to establish any cause of action; and (2) if plaintiffs ever had a cause of action it was barred by the statute of limitations.

The alleged contract was, of course, the foundation of the action. It was alleged the deed was procured on October 22, 1929, pursuant to the alleged trust agreement made at that time by the aged father and the two named sons. We shall, therefore, first consider the case in its relation to the principal defendants, John and Alex Staab, and treat the case against Christina Staab later. In order to establish a constructive trust, based upon the allegations of the petition in this case, it was necessary to prove (1) the existence of a confidential relation between the aged and uneducated father and the defendant sons; (2) a transaction induced by that relation; and (3) a breach by the sons of the confidence reposed. Staab v. Staab, supra, 158 Kan. at page 80, 145 P.2d 452; Staab v. Staab, supra, 158 Kan. at page 73, 145 P.2d 447.

Did the evidence sufficiently establish the elements of a constructive trust to withstand the demurrers of John and Alex? Before we analyze appellants' testimony it seems well to emphasize certain well established principles governing a ruling on a general demurrer to evidence. Such a demurrer tests only the legal sufficiency of the evidence. In passing on the demurrer courts cannot weigh evidence; they must disregard all unfavorable evidence and consider only evidence favorable to the parties adducing it; they must give full credence to the evidence adduced and construe all inferences which reasonably may be drawn therefrom in the light most favorable to the parties adducing it. If the evidence, considered in harmony with these principles, fairly tends to establish a cause of action or defense, the demurrer should be overruled. Zumbrun v. City of Osawatomie, 130 Kan. 719, 721, 288 P. 584; Robinson v. Short, 148 Kan. 134, 79 P.2d 903; Myers v. Shell Petroleum Corporation, 153 Kan. 287, 110 P.2d 810; In re Estate of Bond, 158 Kan. 776, 781, 782, 150 P.2d 343.

It is true we consistently have held the evidence of an oral contract of this character pertaining to land must be such as to raise a 'convincing implication' that the contract was actually made and that it must satisfy the court of its terms. Simply stated, we have said such a contract must be established by clear and satisfactory proof whether the evidence be direct or circumstantial. Bichel v. Oliver, 77 Kan. 696, 95 P. 396; Woltz v. First Trust Co., 135 Kan. 253, 9 P.2d 665; In re Estate of Bond, 158 Kan. 776, 150 P.2d 343. That character and extent of proof is properly required by a trial court after the case is submitted for final decision upon its merits. The evidence, however, need not reach that high degree of definiteness and certainty when tested by demurrer. When so tested the general principles applicable to a ruling on a demurrer, previously stated herein, control. Of course, where evidence on some essential element of the cause of action is wholly lacking a demurrer is properly sustained. In re Estate of Bond, supra, 158 Kan. at pages 780-782, 150 P.2d 343.

Applying these principles to appellants' evidence, should the demurrers have been sustained? Their evidence properly considered on demurrer, in substance, disclosed:

The father, Carl Staab, died intestate in 1937 at the age of eighty-one; his wife had died in 1916; they had seven children, three sons and four daughters; most of the children early went their separate ways but the defendant sons, John and Alex, remained on the home place with the father and helped him with the farm operations on the home place and on other lands he had acquired; the daughter Katherine remained with the father and sons until 1923; thereafter the children who were away visited at the home place only occasionally; the father was a German and could neither read nor write English; he could not sign his own name; he, John and Alex got along well together; while the father probably was as close to one of these sons as he was to the other he had John aid him in his business affairs and especially with respect to such matters as required the execution of written instruments; on October 22, 1929, the father concluded to buy some additional land in Ellis county, the half section involved in this case; title thereto was acquired from Charles W. Johnson, receiver of The Citizens State Bank of Hays, by quitclaim deed; the deed was recorded October 25, 1929; the land was subject to a mortgage which the grantees assumed and agreed to pay; the purchase price was paid by a check drawn on the bank account of the father in another bank; the mortgage was paid by a check drawn on the same bank account on October 30, 1929; that the purchase price of the land involved was paid by the father was admitted by John according to appellants' evidence.

The abstract of the testimony of Roy Dwyer, husband of Marie Staab Dwyer, concerning a conversation he had with John is as follows:

'In his conversation with John in December, 1937, John said that the half section of land was bought by his father, with the understanding that upon the father's

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