89 Kan. 58 | Kan. | 1913
The opinion of the court was delivered by
Manfred E. Hull and his wife, Etta H. Hull, now Etta H. Osincup, the appellant, were in 1894 residents of the state of Iowa, and with them lived his mother, Julia A. George. Manfred E. Hull was possessed of certain property in the state of Iowa and also of certain land in the state of Kansas. On October 24, 1894, Hull died intestate, leaving surviving him his wife and mother, but no children. In order to settle up the estate and acting upon the advice of an attorney, who, as it is alleged, informed appellant and Julia A. George that they were each entitled to -one-half of the Kansas land, appellant and Julia A. George entered into a contract which recited that “in consideration of the love and affection existing between the parties” the estate, including the Kansas land, should be equally divided between them after the payment of debts and funeral expenses. To carry out this agreement appellant made a quitclaim deed for the Kansas land to Julia A. George “in consideration of one dollar and other valuable considerations,” and later received from Julia A. George a quitclaim deed for an undivided one-half interest in the land for the same consideration. In each of the deeds it was recited that Julia A. George was the mother and only heir of Manfred' E. Hull. In 1910 Julia A. George, while a resident of Illinois, died, leaving a will naming the appellees as devisees. At this time appellant was a resident of California, and after Julia A. George’s death appellant alleges that by consulting an attorney regarding her interest, if any, in the estate, she for the first time found herself to have been entitled to the whole
Accepting as true all of the testimony which tends to. support the allegations of the appellant in her petition, and drawing every fair inference from it favorable to her, as must be done upon a demurrer to evidence, did she present á ca,se for equitable relief? She alleged that upon the- death of her husband she became the absolute owner of the Kansas - land, but that she and Julia A. George were advised by an attorney and led into the mistaken belief that the law of Kansas was the same as the law of Iowa, where they resided, giving the mother of decedent one-half of the land in Kansas as well as in Iowa, and that transfers were made by each to the other of a one-half interest in the land without any consideration, and that neither of them resided in. Kansas and neither discovered the mistake before the death of the mother in 1910, and that after her death and upon inquiry appellant discovered the mistake, and that she promptly came to a court, of equity in order to correct the mistake and obtain relief.
The testimony shows plainly enough that a mistake was made, and also that it was a mutual mistake. The
“The grantee is the mbther and only heir at law of said Manfred E. Hull, deceased, who died intestate without living issue.”
In the deed from Julia A. George to appellant there is a recital as follows:
“The said Julia A. George is the mother and sole heir at law of Manfred E. Hull, and the grantee is the widow of said Manfred E. Hull, deceased, who died intestate without living issue.”
The mistake was not an unnatural one. The deceased owned land in Iowa, where he lived with his wife and mother, and under the law of that state one-half of the real estate which he had owned there descended to the mother and the remainder to the widow. They believed.that the law of descents and distributions was the same in Kansas as in Iowa, and of this they were reassured by the advice of a lawyer of that state.
It is contended that if a mistake was made it was one against which equity will not relieve. Passing the question as to whether equity ever gives relief for a mistake of a person as to his legal rights or as to the law, it must be held that the mistake claimed by appellant was one of fact. It was not a mistake as to the legal effect of the deeds executed, but it was a. mistake as to the law of descents and distributions of a state other than the one in which the parties resided, and of the rights of the parties under that statute. It has been decided that a mistake as to the law of another state is one of fact against which relief may be had in the absence of countervailing equities. On this question it has been said:
“The general rule that a mistake of law, pure and simple, is not adequate ground for relief rests upon the. fundamental assumption that persons of sound and mature mind are presumed to know the law, but this*62 assumption, does not apply to the laws of another state. (2 Pom. Eq. Jur., 3d ed., § 842.) - Ignorance of these laws is deemed to be ignorance of fact.” (Bolinger v. Beacham, 81 Kan. 746, 750, 106 Pac. 1094.)
Other cases of like import are: Railroad Co. v. Johnson, 61 Kan. 417, 59 Pac. 1063; Williams v. Merriam, 72 Kan. 312, 83 Pac. 976; Mystic Legion v. Brewer, 75 Kan. 729, 90 Pac. 247; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614.
Through this mistake of fact, based on erroneous advice from one on whom she would naturally rely, appellant conveyed property to which she had a clear and complete title to one who gave no consideration for it and who had no interest in or right to it. The preliminary contract between them referred to the consideration of love and affection, and in the deeds the consideration recited was “one dollar and .other valuable considerations,” an expression used to indicate a nominal consideration, and is ordinarily employed in cases where nothing is actually paid. It is not easy to infer that appellant intended to donate and convey land of which she had an absolute title to Mrs. George, but her testimony, which is uncontradicted, is that there was no consideration in fact paid, and no intention to make a gift to the grantee, but that through the erroneous advice and the mistake as to their rights of inheritance under the statute they apportioned the land between them in equal shares and deeds were accordingly executed.
The next contention is that equity will not grant relief from the mistake in question because of the laches, or negligence of appellant in making inquiry and in asking for redress. The general rule is that equity will not interpose to relieve from mistake where there is inexcusable negligence or where the granting of the relief asked would operate inequitably and do an injustice. On the other side, it is said that there were good reasons for the delay, that no circumstances arose
"They (cases on laches) proceed on the assumption that the party to -whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned; and that because of the change in condition or relations during this period of delay, it would be an injustice to the latter to permit him to now assert them.” (p. 372.)
If, as the testimony tends to show, appellant acted as soon as she learned of the mistake and of the fact that her land was held by another, how can it be said that there was any abandonment of her rights, or laches in asserting them? It would be inequitable to impute negligence to one who was ignorant of her rights. It has been said:
“There can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence he had no reason to apprehend.” (Halstead v. Grinnan, 152 U. S. 412, 417, 14 Supr. Ct. Rep. 641, 38 L. Ed. 495.)
In Nicholson v. Nicholson, 83 Kan. 223, 109 Pac. 1086, a case similar to the one under consideration, it was said:
“It is conceded that a mistake as to the law of another state is a mistake of fact, but it is urged that the plaintiff’s petition discloses laches; that she has been negligent in not reading up on the law of Ohio. A woman eighty-four years of age, who has resided in Kansas for many years and is ignorant of the laws of another state, and who relies upon the statements of her adopted son that such laws are thus and so, can not, as a matter of law, be held guilty of laches in failing to discover the- truth with respect thereto.” (p. 223.)
No one would have questioned the right of appellant to relief if it had been asked for within a short time after the mistake was made, and it should not be denied