Brown v. Brown, 64 P. 599

64 P. 599 | Kan. | 1901

The opinion of the court was delivered by

Ellis, J.:

The plaintiff in error insists that the statute of limitations had run against plaintiff’s action before this suit was instituted, and having raised that issue in his answer in the court below, he now assigns the failure of the court so to find as one of his principal grounds of error. We do not think the position is tenable. The evidence shows, and the court below found, that the plaintiff widow had no notice or knowledge that the apparently formal and businesslike offer and undertaking of Samuel Brown to buy the farm was, in fact, but a rehearsal by him of a farce, until after the death of her husband. The representations then and there made by Samuel Brown constitute the fraud complained of. It does not appear, and is not vitally important, to what extent Van Voorhis Brown participated in the fraudulent intent of Samuel, though the court below found that he joined in the effort to procure the deed, knowing that the pretended consideration of $4500 was not to be paid by his brother. Of course, the widow knew that the deed was delivered in 1894, but at that time she believed, and had a right to believe, that her brother-in-law had bought the farm. Afterward, when he announced that he would give up the farm, in view of the relationship of the parties, we think she had a right to assume that no attempt would be made to assert title under the deed, and that the same would be surrendered or destroyed. Be that as it may, she had no notice or knowledge that the conversation had in her presence and the words spoken by her brother-in-law constituted but the enactment of a play to deceive her, until she was suddenly and ruthlessly apprised of it in a most heartless and unfeeling manner, at a time when she was grief-stricken and bowed down with a much greater affliction. Within a few hours after her husband had been laid in his grave she was told that she and the child were paupers ; that the position of affluence which her husband had occupied, and which she had aided in establishing, was but a myth; that the property which she had helped to earn and save by industry and frugality belonged to others ; and that, instead of being the widow of a well-to-do Kansas farmer, she was a beggar woman with a child in her arms, dependent upon her husband’s family for the means to return to her relatives in Pennsylvania. Then for the first time she learned that she had been ensnared and deluded. Then the fraud was discovered, and until that time the cause of action had not accrued. (Gen. Stat. 1897, ch. 95, §12; Gen. Stat. 1899, §4262.)

Error is assigned because the case was tried in the court below at the same term that the issues were finally made up. It appears, however, that the issues had been made up long prior to such term, although amendments were made at the same term at which the cause was tried. Under these circumstances, it was not error for the court to call the case for trial at such term. (Rice & Floyd v. Hodge Bros., 26 Kan. 164.)

Mrs. Chapman, a witness offered by the plaintiffs below, was permitted to make the statement that Emaline Brown told her that the farm had been deeded to Samuel to prevent it from going out of the family, and to get it out of “her” hands, referring, presumably, to the wife of Van Voorhis. Emaline Brown was a witness for the defendant below, but no proper foundation was laid for impeachment. As a witness, she claimed, at the time the case was tried, to be the owner of this land, and that after the action was commenced her son Samuel conveyed it to her. Both she and Samuel, in their testimony, claimed it had been conveyed to Samuel by Van Voorhis and wife in consideration of the original $3000 advanced to her son, and that Samuel had taken title for her benefit. In the conveyance to her, made while this action was pending, a recital to that effect was made. According to her contention then, as well as that of the defendant below, she was the real party in interest, and it is well settled that the admission of a real party in interest is admissible as against a nominal party. (1 A. & E. Encycl. of L. 179, and cases cited ; 1 Greenl. Ev. 180; 1 Phill. Ev. 486; Hansen v. Parker, 1 Wils. 256; Barber’s Adm’r v. Bennett, 60 Vt. 662, 15 Atl. 348, 1 L. R. A. 224.)

Alma Harrison was a witness for plaintiffs below, and testified to conversations had with Emaline Brown, and also with Joseph Brown, in relation to the ownership of the farm after it was bought and the title of it placed in the name of Van Voorhis. In effect, she testified that they told her that the farm belonged to Van Voorhis. As to Emaline Brown this testimony was admissible, for the reasons last above given, and as to Joseph Brown, his attention w'as called to the matter while he was upon the stand, and proper foundation was laid for it, and it was admissible for the purpose of impeachment.

One Friesting was permitted to testify to the fact that Van Voorhis at one time paid to his father Joseph a large sum of money which Van Voorhis had received from the sale of products of the farm. Other witnesses also testified to similar transactions between Van Voorhis and his father. Indeed, it was made to appear that the father acted as banker for his son. Friesting’s testimony was admissible because it bore upon the question, if it was a question, as to whether Van Voorhis had repaid to his father and mother the money advanced, with which he had bought the farm, and, also, because the father claimed that he had paid the taxes upon the land, and, irrespective of the question as to whether a conspiracy.was established between the father, mother .and Samuel to defraud the plaintiff widow, it was competent to show the real method of doing business which had been pursued between these different members of the same family. A sufficient foundation was laid for the testimony of these witnesses while Joseph Brown was upon the stand.

It is also insisted that the widow was not competent to testify to the conversation between Samuel Brown and her husband, Van Voorhis Brown, under sections 322 and 323 of the civil code. (Gen. Stat. 1897, ch. 95, §§333, 334; Gen. Stat. 1899, §§4585, 4586). She did not testify to any communication had between her husband and herself. She was a competent witness to testify to a conversation had between Samuel Brown and her husband. (National Bank v. Beard, 55 Kan. 773, 42 Pac. 320; Pulsifer v. Arbuthnot, 59 Kan. 380, 382, 58 Pac. 70.)

The contention of counsel for plaintiff in error, that the court below erred in refusing to allow the expert witness, Shelley, to be disputed upon a collateral matter, is disposed of by this court in Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739.

Counsel also insist that prejudicial error was committed by the trial court in making special findings of fact without being thereto requested by either party. This court has held : “A court may, of its own motion, in addition to its general judgment, find specially upon all the issues or upon a part of them.” (Farwell Co. v. Lykins, 59 Kan. 96, 99, 52 Pac. 99.)

After the court had made special findings of fact, the defendant below made a written request for additional findings, and the failure of the court to comply with such request is assigned as error. Whatever may be the rule where a court refuses, upon request, to make a finding upon a matter material to the issue, upon which it has not found, there can be no doubt that in this case the failure of the court to make such findings was not error, for the requests were not that the court should find upon matters omitted, but that it should make findings which were antagonistic to those it had already made.

Counsel for plaintiff in error likewise contend that, because Emaline Brown furnished her son the money in the first place with which to buy this farm, she was the equitable owner of it “by virtue of a resulting or implied trust.” In response to this contention, it is sufficient to say that the mother, having given the money to the son with the understanding that he was to buy a farm for himself with it, and having for years thereafter, with full knowledge of what he had done, acquiesced in and approved of the course he had taken, the case does not come within our statute relating to trusts and powers. (Gen. Stat. 1897, ch. 113, §§ 6, 8; Gen. Stat. 1899, §§ 7524, 7526.) In this connection the euurt below found:

“There was no agreement or understanding, oral or written, between Yan V. Brown or his mother or father, or either of them, as to any interest, lien or claim that the said Emaline Brown might have in or upon said land by reason of having furnished the said $3000 with which Van V. Brown paid the purchase-price of said land.”

The case of Kennedy v. Taylor, 20 Kan. 558, to which we are referred, is clearly not in point.

Finally, it is claimed that the child cannot be granted relief in this action, because he could not be affected by a fraud practiced upon one or both of his parents before he was born. The land in question was a homestead; it had not been alienated by the joint consent of husband and wife — the deception practiced upon the wife prevented the conveyance from so operating ; the father was dead, and the child was an heir to that which the father equitably owned at the time of his decease. The land, having been alienated as the result of fraud, should be restored, and the child inherited an interest and was a necessary party to the action.

The findings of the court below fully sustain its judgment, and there was evidence in the case to sustain each of the findings. In the view taken by the court below of the testimony, its judgment was right, and as no material error was committed it must be affirmed.