114 Kan. 857 | Kan. | 1923
The opinion of the court was delivered by
Mrs. Anna Hinderliter brought this action against the sons and daughter of her deceased husband to cancel and set aside a contract and deed executed by her, but only the daughter, Mrs. Nora E. Bell, and her husband, were served with process. From a decision of the court holding that her petition failed to state a cause of action she appeals.
The averments of her petition, so far as material to the questions raised on this appeal, are in substance that plaintiff was the widow of Daniel W. Hinderliter, who died intestate, leaving a farm in Kansas of the value of $25,000, encumbered by a mortgage of $1,300, and also some personal property. By a former marriage her husband had a family of five children, and when she married him, the ages of the children ranged from ten to twenty-five years, and she alleged that she had cared for them from the date of the marriage until his death, a period of about twelve years. She alleged that her husband died intestate in Wyoming, on January 20, 1917, and that after his death the body was taken to Franklin county, Kansas, where he had formerly lived. She averred that after the burial, which was on January 25, 1917, the .children by misrepresentation, undue influence and fraud, induced her to execute a contract and deed transferring the land in Kansas to them. The agreement recites that plaintiff had sold and conveyed by her .deed of conveyance to the children all of her interest, right and title to the real estate in Kansas described, and all her interest in personal and other property that the deceased father had. In consideration of the conveyance they agreed to pay to plaintiff, the sum of $20 per month, payable monthly so long as she might live, and in addition to such payment they agreed to furnish her in time of sickness, proper, necessary and suitable medical attendance, a competent nurse, if necessary, and at last to see that she had a proper, suitable and respectable burial. It recited that should she remarry the contract would end and the grantees would be under no further obligation to her. At the time of the execution of the contract, which was
She further alleged that the agreement made did not contain all of the promises they had made to her in that it did not provide the land would stand as security for the performance of the conditions, and further that she did not understand the difference between a deed and any other legal document until she was informed by her attorney shortly before the suit was brought. It is alleged that the contract did not contain the agreement to build an addition to the home for her, all of which she believed to have been embodied in the agreement which she signed. It is further stated that her husband had money and other property which was taken over by the defendants without an inventory and that no accounting had been made of it either before or since the execution of the agreement and deed. There is an allegation that shortly after she signed these instruments, Nora E. Bell, the daughter, and her husband purchased the interests of the other defendants and paid therefor the sum of $9,880, and in the transaction they assumed the payment of the $1,300 mortgage existing on the land. She recites that the lands were valuable for the production of oil and wheat, and that the Bells have received annually from the lands a net profit of about $3,000. She stated that all the promises were false and fraudulently made without the intention to fulfill them, but rather for the purpose of lulling her into a feeling of security and obtaining the property without giving her just compensation therefor. She alleges that she discovered the fraud about the 21st day of September, 1921, whereupon she immediately elected to rescind the contract and notified the defendants of her decision, offering to pay back the amount she had received, namely, about $1,000, and asking that the contract and deed be canceled and that an accounting be made by the defendants of all moneys and property which they had derived from the land and converted to their own use.
The pleading states facts which if established by evidence would apparently entitle plaintiff to relief if the remedy is not barred by the statute of limitations. Her cause of action is based on the
Assuming that she was defrauded in the transaction she had the means of information and must be held to have had knowledge of the conveyance she had made and of the conditions embraced or omitted from the contract. This knowledge she gained or could have gained from the .contract, and the slightest diligence would have revealed the things and wrongs of which she complains. One who has an instrument in her possession stating the terms and conditions of the transfer cannot shut her eyes and say that she was unaware of provisions distinctly written therein. Concealment of the transfer after it was made is not charged nor was there any attempt to throw her off her guard or divert her attention from the contents of the papers she signed nor is it averred that there was any fraud by the defendants to prevent her from ascertaining or availing herself of the contents of the papers or the record of the transfer. It must be held that she had notice of the fraud and that the cause of action accrued more than two years before her action was brought. Although claimed there was no fiduciary or confidential relation between the parties that affects the starting of the statute of limitations. She was the'stepmother of the defendants. When she married their father, the eldest stepchild was twenty-five years old, and the youngest ten. All of them had reached majority and had gone from the father’s home before the transaction in question. There was nothing approaching agency for the plaintiff nor the intrusting of business to them and no circumstances such as would create >a trust relationship. From the time she learned the contents and character of- the contract she had notice and knowledge of the attitude of the defendants and of the wrongs alleged sufficient to start the statute of limitations.
The judgment of the district court is affirmed.