67 P. 542 | Kan. | 1902
The opinion of the court was delivered by
This was an action to declare a trust in land, and to recover the rents and profits of the land from the trustee. Judgment went in favor of the plaintiff on both demands, to reverse which error has been prosecuted. Summarized, the undisputed facts, and likewise those which, although disputed, were of necessity ascertained by the court and included in its
The claim of the plaintiffs in error is that the trust, if any, was an express trust, and, not being in writing, was void. (Gen. Stat. 1901, §7875.) This claim is untenable. It is impossible to view the acts of the parties in the light of their intention, or, rather, lack of intention, as the creation of an express trust. There was no agreement that the grantee, Kahm, should take and hold the title of the land for the use and benefit of the grantor, Klaus. The agreement was that he should manage the land for her as her agent. Instead of procuring from her a writing fit and appropriate to express such agreement, he procured from
• Kahm, the trustee, took possession of the land in 1885 through a tenant, and paid the rent of that year and also part of the rent of 1886 to Klaus. Beginning with 1887, he kept the whole of the rent'himself, but made no claim of title until 1898. Under such circumstances, the plea of the statute of limitations was no defense. The fraud was not discovered by Klaus until, through Kahm’s assertion of title, the real nature of the instrument he had induced the former to execute was disclosed. The action was then com
The plaintiff in error claimed in the court below that the deed of 1872 made to him by Mary Urban was, as it purported to be, a conveyance of the land. He denied the claim of the defendant in error that it was a mortgage. The court, however, found that it was the latter kind of instrument. The plaintiff in error now claims that the court should have foreclosed the deed as a mortgage. He made no demand for foreclosure in the court below, nor had he any pleadings in the case under which such demand could have been made, and it is therefore difficult to perceive how such relief could have been awarded. Whether under such circumstances the doctrine of estoppel by election of remedies applies we need not determine. The case has some features like Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062. However, in that case the claim first asserted was denied without an adjudication that another one existed. In this case the claim first asserted was denied for the reason, as found by the court, that another one did exist. That finding, however, was made in opposition to the theory of defendant, the plaintiff in error here. Notwithstanding his disavowal it could have beén made, possibly, the basis of affirm
As mentioned in the beginning, we have stated only the ultimate, not the evidentiary, facts. Counsel for plaintiff in error contend that the court below erred in its view of the evidence. We ourselves could wish it more strongly preponderating in favor of defendant in error, because written instruments on which contractual rights are founded should not be impeached on charges of fraud, save when the evidence is clear and satisfactory. (Insurance Co. v. Rammelsberg, 58 Kan. 531, 50 Pac. 446.) That rule, however, is one for the trial court rather than this court. The ordinary rule for us is that when a case has been tried in the court below without a jury and there is some testimony in proof of every fact necessary to sustain the general finding, the finding will be upheld without undertaking.to review the evidence. (Wood v. Davis, 12 Kan. 575.) Some minor claims of error were made. They relate principally to the reception or rejection of evidence. They are not well founded.
The judgment of the court below is affirmed.