84 P.2d 919 | Kan. | 1938
The opinion of the court was delivered by
This action was instituted to establish title in the plaintiff to land on the theory of a constructive trust. Plaintiff also sought to recover certain rents and profits from the land, and to eject the principal defendant, Theodore C. Rasmussen, her divorced husband, therefrom. Plaintiff has appealed from a ruling sustaining defendant’s demurrer to plaintiff’s evidence on the question of title and from the general judgment in favor of defendant Rasmussen on the issue of rents. The relationship of other defendants to certain transactions will be disclosed in the course of the opinion.
The material averments of plaintiff’s petition were in substance as follows: Plaintiff and the defendant, Theodore C. Rasmussen, were married in 1895. Plaintiff was entirely inexperienced in business matters. By reason of the intimate and confidential relationship, defendant knew of plaintiff’s aversion and obsession against signing notes and mortgages. In about the year 1931 difficulties and disagreements arose between them, and defendant conceived the plan of obtaining his freedom from plaintiff, and preventing plaintiff from receiving any property owned by the parties. Defendant planned, connived and conspired to effect and enter into a property settlement with plaintiff under a postnuptial agreement, whereby, owing
That about April 6, 1934, the plaintiff failed to redeem the property which she was to receive by reason of the postnuptial agreement and decree of divorce, by reason of her business inexperience and aversion to signing notes and mortgages. On April 7, 1934, a sheriff’s deed was executed and delivered to defendant, C. C. Smith. Pursuant to defendant’s plan and conspiracy to defraud plaintiff,
The second cause of action was for rents and profits. After incorporating the allegations contained in the first cause of action it alleged, in substance: Plaintiff had never recorded the quitclaim deed she received to the property. During the period of the equity of redemption, nor at any time since, had she received any income from the property except for the year 1932. Defendant had received all income since January 23, 1932, in the sum of at least $2,000 and should be required to account to plaintiff therefor.
The third cause of action was one in ejectment. It incorporated the allegations contained in the first cause of action and alleged plaintiff was the lawful owner of the property, that the defendants, Arthur Cyr and his wife, were in the possession, thereof as tenants of defendant Rasmussen, and that they should be ejected therefrom and plaintiff placed in possession.
The verified answer of defendant Rasmussen was as follows:
*652 “That the relationship of principal and agent did not exist between plaintiff and defendant Theodore C. Rasmussen regarding the possession and management of the real estate involved. That defendants admitted the marriage, the foreclosure sale and buying of the certificate of purchase by Clay C. Smith, the execution of the postnuptial contract, the suit for divorce by Theodore C. Rasmussen, the granting of an emergency, the entry of a decree of divorce, the issuance of a sheriff’s deed to the land involved, and that the property was sold to Theodore C. Rasmussen all as alleged in plaintiff’s petition.
“That on March 1, 1918, Anna M. Rasmussen sued Theodore C. Rasmussen for separate maintenance; that she alleged that for nearly two years she and her husband had not lived together and that because of his conduct to her she was unable to live with him as her husband without fear for her personal safety, and that her health and peace of mind required that she live separate from Theodore C. Rasmussen, a copy of said petition being attached and marked exhibit A; that from the time of such suit for separate maintenance up to the time of the divorce the Rasmussens had never lived together as husband and wife; there was no reconciliation; that they lived apart as if they were strangers, and that plaintiff’s attitude toward Theodore C. Rasmussen was hostile, and that no fiduciary or confidential relation existed between said parties.”
Plaintiff’s reply contained a general denial and in addition thereto the following:
“Plaintiff admitted that she had brought suit for separate maintenance, but alleged that such suit was later dismissed, but that notwithstanding such suit a confidential and fiduciary relationship existed between plaintiff and Theodore C. Rasmussen and that said defendant was in no way excused of his duty to deal fairly with the plaintiff; that plaintiff was entirely inexperienced in business and at great disadvantage in business transactions and has certain peculiarities, all of which were known to Theodore C. Rasmussen as shown by paragraphs 3 and 7 of exhibit 'A,’ attached to defendant’s answer: Wherefore plaintiff prayed judgment as prayed for in her petition.”
Upon the issues thus joined the parties proceeded to trial. They filed an agreed statement of facts. While it did not preclude the introduction of other evidence, it did contain certain admissions of fact touching the question of title which, in substance,, were:
Plaintiff and the defendant, Rasmussen, were married in the year 1895. A divorce was granted on June 6, 1932, in favor of the husband (defendant herein), on the ground of the wife’s (plaintiff herein) abandonment; previously and in July of 1915 the plaintiff herein was adjudged insane and committed to the state hospital. In December of 1916 she was adjudged to have been restored to her right mind and her citizenship was restored by judicial decree. By reason of friction and disagreements between them the parties con
“7. It is further agreed that if in the future either of said parties should institute an action against the other for divorce, he or she shall do so at his or her own expense and cost, and each covenants and agrees with the other that in such event neither will claim, demand or receive any property from the other in such action, and that the settlement herein stipulated and contained is intended for, and is, a full, final and complete settlement and adjustment and division of the property matters between said parties and shall be final and conclusive upon them in any court of record.”
The agreed statement of facts contained, in substance, the further provisions: On April 25,1932, the defendant instituted an action for divorce on the ground of abandonment, and a decree of divorce was granted in his favor upon that ground on the 6th day of June, 1932. In that decree the postnuptial agreement was by the court declared to be a fair, just and equitable agreement, and that it had been understanding^ entered into. That agreement was approved, ratified and confirmed by the court, and it was made a part of the decree of divorce. A period of sixty days had not elapsed between the filing of the action for a divorce and the decree, but an emergency had been declared under the provisions of G. S. 1935, 60-1517. In support of the emergency decree plaintiff had filed a verified application for the declaration of an emergency. The grounds for the application were, in substance:
In addition to all of the above-admitted facts, oral testimony was offered by both sides for the purpose of throwing additional light on the question of alleged fraud, and on the question of whether there had been a breach by defendant of a fiduciary and confidential relationship of the parties, while such a relationship in fact existed, and also on the further questions of whether the defendant, during the confidential relationship of the parties, had actually acquired knowledge of plaintiff’s peculiarities and aversion for signing notes or mortgages, and whether after that relationship ceased defendant used that knowledge for the purpose of depriving the plaintiff of her property. No useful purpose can be served by a review of that evidence. The action was tried by the court. It was the trier of the facts. It resolved those issues against the plaintiff and in favor of the defendant. There was an abundance of substantial evidence to support the judgment in favor of the defendant on those issues. There was no evidence plaintiff was insane. She had been restored to sanity by judicial decree in 1916. This action was not commenced until July 9, 1936. True, there was evidence she had been and still was weak, physically and mentally, and was not experienced in business dealings. She was, however, represented throughout by counsel. It is not suggested her counsel at any time were unfaithful to the trust bestowed or in any sense inefficient in representing and protecting her interests. The trial court, throughout the instant litigation, was exceedingly cautious and repeatedly in
“The Court: Well, of course, I feel, as I indicated at the time of the hearing, the plaintiff’s right is dependent, in the first place, upon establishing some sort of trust relationship or fiduciary or other confidential relationship between her and the defendant. On the question of the fiduciary or confidential relationship, the evidence pretty strongly negatives that. The relationship was very strained, so much so that they have had no dealings, social or otherwise, with each other for twenty years or thereabouts.
“The lcey to plaintiff’s claim was a claim of knowledge on the part of the defendant, during the existence of the marital relationship, of a peculiarity, idiosyncrasy, whatever we want to call it, on the part of the plaintiff against signing papers, notes, mortgages; and there just is no evidence to substantiate that claim. The plaintiff was permitted to offer evidence of a refusal on her part to sign something. But, as I recall it, without exception those incidents occurred after the divorce, and there was no evidence of any knowledge or information of those transactions having come to the defendant.
“Of course, another vital step seemed to be the element of collusion or agency with the Smiths. There could be no doubt from the evidence that the Smiths came into the possession of this certificate of purchase in an ordinary business transaction, in due course of their business, and without any suggestion, or even knowledge, on the part of the defendant. He had nothing to do with that. The defendant undoubtedly was aware of the fact that his wife was not exercising the right which she had under the law given to her by the contract, and made arrangements, if she did forego that right, by which he could purchase the farm. She still had the full right, and she was urged to exercise it. According to her own testimony she was threatened by some of her own relatives that if she did not go down and redeem this land they would not have anything more to do with her, they would not help her any more.*657 She testified that one of her brothers said that he was absolutely through with her if she passed this up.
“Now, fraud on the part of the defendant which required that much fortitude on the part of the one defrauded, to withstand the threats of all her friends and relatives and her attorneys, when all she had to do was merely do what they asked her to do, and his entire fraudulent scheme fell, seems rather far-fetched to the court.
“The contract was fairly entered into. It has now been twice before this court. Her relatives and others of her own selection were there at the time the contract was entered into, and she was represented by counsel. Is that correct, or was she? Did you act merely as scrivener for both parties? It was at your office.
“Mr. Beall: She was represented by Mr. Harlan.
“The Court: Oh, yes, that is right. She was represented by counsel, by thoroughly capable counsel. I think we could all agree on that.
“So, as I say, I am utterly unable to see anything for a court of equity to lay hold on. Of course, the result is that she lost this farm, but, to borrow a term from another field of the law, it certainly cannot be said that anything the defendant did was the ‘proximate cause.’ The whole thing was the result of some notion of her own, and there is no evidence that her husband had any reason to suppose that she would take such an attitude at the time the contract was entered into.
“So, the motion for new trial will be overruled.”
The summary of the evidence discloses the court, in effect, made not only definite findings of fact on the controverted issues, but it also discloses at least a portion of the evidence which supports those findings. Under these circumstances there are no facts out of which this court can create a constructive trust. The judgment is affirmed.