80 Kan. 644 | Kan. | 1909
The opinion of the court was delivered by
Mary Yocum and Jennie Blodgett are daughters and only heirs of Ann Ruddicks, deceased, who in her lifetime was the owner of real estate in Reno county, consisting of town lots in Arlington and a quarter-section of farm land. The plaintiff, Mrs. Yo-cum, brought this action against her sister to recover a one-half interest in the real estate. The other defendants are the husband of Jennie Blodgett arid their children.
The defendants answered admitting that Ann Ruddicks owned the real estate in her lifetime, and alleging that she died on the 30th day of December, 1906; that on September 1, 1900, she executed,a will, afterward duly probated, by which she devised a life-interest in. the town lots to defendant Jennie Blodgett, with remainder to the latter’s heirs; that on the 27th day of February, 1902, she executed a warranty deed conveying to Jennie Blodgett eighty acres' of the land, reserving to herself a life-estate therein, and on the same day executed another warranty deed conveying to Jennie Blodget a life-interest in the other eighty acres, with remainder in forty acres thereof to William C. Blodgett and in the other forty acres to George H. Blodgett, children of Jennie Blodgett.
The reply admitted the execution of the will and the
The cause was tried to the court and a jury, and a verdict rendered for the plaintiff as to the farm land and for the defendants as to the town lots. Judgment was rendered in favor of plaintiff for an undivided one-half interest in the farm land, adjudging the deeds executed by Ann Ruddicks in her lifetime void and of no effect, and further adjudging that the last will and testament of Ann Ruddicks was valid and that the title to the town lots passed thereby to the defendants. Of this judgment the defendants complain.
Numerous errors are assigned; we shall consider but two of them. It is claimed that the court erred in giving the following instruction':
“(5) The court instructs the jury that, in deciding whether or not Ann Ruddicks was of sound mind or was unduly influenced at the time of making the deeds in question, you have a right to take into consideration the reasonableness or unreasonableness of her act in making said deeds; and if you believe that a woman of sound mind would not have been likely to do such an act in the free exercise of her judgment, discriminating against one daughter in favor of the other daughter and her family, then you have a right to infer from the act itself that undue influence was used to secure said deeds, though not bound to do so.”
This instruction was erroneous. It practically told the jury that if they regarded the disposition which the deceased made of her property as unreasonable they might infer that at the time she executed the deeds she was of unsound mind or unduly influenced, or both. In the instruction immediately following the court correctly informed the jury that a person of sound mind and not under undue influence has a right to dispose of his property as he desires. The fifth instruction is in direct conflict with this well-settled proposition. The
As the cause must be reversed and a new trial ordered, there remains to be considered a question of misjoinder. Before the answer was filed the petition contained a cause of action in which it was sought to set aside the deeds of conveyance made by Ann Ruddicks on the ground that they had been obtained by undue influence and because she was of unsound mind. The averments with respect to the deeds were general in character and did not disclose a misjoinder of causes of action. A motion to make more definite and certain
The plaintiff had the right to dismiss the cause of action in which she sought to set aside the deeds, and she was obliged to reply and set up any new matter upon which she relied to avoid the effect of the conveyances pleaded in the answer.
The petition was in ejectment, and showed on its face no misjoinder. It alleged that the plaintiff was the owner in fee simple of the undivided one-half interest in. all the real estate; that Jennie Blodgett and her husband, together with the other defendants, their children, were in the actual possession of all of it and deprived the plaintiff of her possession. If the answer
There is no such thing known to our practice as a misjoinder of parties, but we assume that the defendants mean by this a misjoinder of causes of action, since they use the two expressions interchangeably. The code of procedure in force at the time the case was tried provided that where a demurrer was sustained to a petition on the ground of misjoinder of causes of action it became the duty of the court, on the motion of the plaintiff, to allow him to file several petitions, and the action then proceeded without further service. (Civ. Code, § 92.) The new code dispenses with this ground of demurrer to a petition. (Laws 1909, ch. 182, § 93.) In this case the defense of misjoinder was not raised by demurrer, and there was no motion or request on the part of the plaintiff to file several petitions ; nor did any defendant who claims that his or her rights were affected by the misjoinder ask for a separate trial or for a severance. On the contrary, all the defendants joined in the same answer and admitted that they were in the possession of all the real estate. The plaintiff claimed an interest in the property as an heir of her mother, and her title was the same as to all the defendants. The misjoinder shown by the answer was at the most technical, and furnished no ground for objection to testimony or for a demurrer to the evidence. The court still had jurisdiction of the parties and of the action and could provide in its decree for the protection of the rights of all parties. Since none of the defendants asked for a separate trial, or claimed to have been made liable for unnecessary costs, we are at a loss to see how their rights could have been preju
The order in which the plaintiff’s proof was submitted did not make the action one to set aside the conveyances, and the cause was therefore a proper one for submission to a jury. The rights of the parties were not affected by the fact that the plaintiff offered her evidence for the purpose of defeating the conveyances in chief instead of in rebuttal.
Because of the error in the instruction the judgment is reversed and a new trial ordered.