95 P. 1051 | Kan. | 1908
The opinion, of the court was delivered by
In a suit brought by Arch Piper, as guardian for Priscilla J. Lanham, a person of unsound mind, against John F. Piper and Angeline Summers, he alleged that Mrs. Lanham was the. owner of an undivided one-fourth interest in a half-section of land formerly owned by John F. Piper,1 sr., father of Mrs. Lanham and the defendants. In one count he asked for the possession of the land, for $500 as damages for being kept out of possession, and for rents and profits. In another count the plaintiff stated the way in which his ward derived her interest in the land, alleging in sub
In his answer, aside from other averments and defenses, John F. Piper admitted the purchase of the land from the administrator, and also that there had been negotiations looking to the purchase of the land and the holding of the same for the benefit of all of the heirs, but he alleged that the agreement was never consummated, as all of the heirs did not enter into the contract.
The plaintiff offered proof of conversations between some of the heirs and John F. Piper as to the purchase of the land, the placing of the title in the name of piper, and his holding the land in trust for the heirs. Plaintiff also offered proof of admissions by Piper that he had taken, and was holding, the land in trust for the others. Testimony was excluded which tended to show that when Piper and another applied for the loan with which to buy the land it was then stated that the land was to be conveyed to Piper, who was to hold it for the benefit of the heirs, and that the party from whom the money was obtained insisted that all of the parties interested in the land should sign the note and coupons. The record discloses that most of the heirs did sign the note and coupons given to obtain the purchase-price of the land. The testimony tended to show a resulting trust, and should have been admitted. While it is required that trusts concerning lands shall be in writing, signed fiy the party creating the same, an exception is made as to those arising by implication of law. (Gen. Stat. 1901, § 7875.) If by agreément and without fraudulent purpose the plaintiff’s ward and other heirs paid the consideration of the purchase, or of certain interests in the land, and vested the title in Piper, who was to hold the land for their use and benefit, a trust resulted by operation of law in their favor, and the fact that some of the agreements and elements of the trust are not in writing does not prevent its enforcement.
Every agreement and circumstance tending to show that Piper was acting as trustee and holding the land for the heirs, or some of them, was competent. The trust relation may be founded partly on writings and partly on oral agreements, as well as in the conduct of the parties and the circumstances in connection with the matter. So testimony of the signing of the note and coupons upon which the money to buy the land was borrowed, and also the writing acknowledging the receipt of money for-the purchase of an interest of one of the heirs, was admissible. Testimony, -too, of the admissions of Piper, whether oral or in writing, that he was acting in the capacity of a trustee should have been received. Any act of his in recognition of the trust, while holding the land, such as the receipt of money from The plaintiff and others in payment of a proportionate share of the charges upon the land where they exceeded the rents and profits derived from it, as well as his purchase of the interests acquired by some of the heirs under the trust agreement, would tend to establish the trust, and was therefore admissible. Some testimony of that character was admitted, but much that was material and competent was excluded. An objection to some of the testimony .excluded was' that the witness occupied the privileged relation of attorney, but the ruling of the trial court was not placed on that ground. Later in the trial some testimony, similar to that excluded, appears to have been received, but not in such a way or to such an extent as to cure the error that had been committed.
It is argued that plaintiff based his right of recovery upon a written agreement, and for that reason defendant Piper’s admissions and the conversations that
The trial court properly advised the jury that, in ascertaining, whether the land was purchased by Piper as trustee for the others or solely upon his own account, they might “take into consideration any writing that may have been drawn up at the time, the conversations of the parties, their acts, conduct, and all the circumstances, in connection with the matter.” The exclusion of testimony which came within this rule requires a reversal of the judgment and the remanding of the case for another trial.