257 P. 926 | Kan. | 1927
The opinion of the court was delivered by
This was an action between a daughter and her father in which it was asked that certain funds should be declared a trust fund, held for plaintiff’s benefit, also for the specific performance of certain agreements, and if performance could not be had there should be a recovery of a money judgment. The court found
From the testimony and findings it appears that the land in question, an eighty.-acre tract, was purchased by Johnson in 1899, and paid for out of his own funds, but that he had caused the deed to be made in the name of his wife, Jennie Johnson. She died intestate while the title stood in her name, leaving as her heirs the defendant and the plaintiff, her only surviving child. After her death he conveyed to his daughter, an undivided one-half interest in the real estate, reserving, however, the use and profit of it during his natural life, and since the execution of the deed the defendant has been in the continuous possession of the entire tract. It was the understanding of the parties to the deed that the reservation gave him the exclusive use of all the profits of the tract during his life. A lease of the land was made for mineral purposes, and it was agreed that the royalties or mineral productions therefrom should be equally divided between plaintiff and defendant and all of the moneys received from leases and royalty interests were actually divided in accordance with their agreement. One royalty deed was executed for a consideration of $27,500 cash, and a second one for a consideration of $27,500 cash, and pursuant to the agreement these amounts were equally divided between the parties, each receiving $27,500. At one time it was determined that the parties would move to Newton, and a residence property was purchased for $6,000, and subsequently sold and conveyed by plaintiff for $5,600. She had made improvements upon the residence property before the sale' of the value of $1,000, and the court held that that $1,000 should be deducted from the sale price of $5,600, and that defendant was entitled to have one-half of the balance of the sale price, amounting to the sum of $2,300. There were household goods, furniture and fixtures, which the parties had bought at a cost of $1,372, to which each had contributed equally, and these were now in the possession of the plaintiff. This property was held to be of the value of $500, and that plaintiff was entitled to recover one-half of the same, amounting to $250.
Complaint is made of the admission of parol evidence relating to the payment of the consideration recited in the deed to Mrs. Johnson. It is contended that the evidence of defendant as to consideration operated to vary and contradict the terms of the instrument and should have been excluded. The evidence was not offered to
Neither do we find any error in the admission of the testimony of the witness Branine as to the statements of the parties concerning agreements and understandings respecting the reservation of the deed from defendant to plaintiff or in .respect to the income tax inquiry. It was proper to show what the understanding and agreement of the parties was as to whether the reservation covered the use of the entire tract or only one-half of the same.
. It is further contended that the evidence did not justify the finding of the court of an agreement as to the division of the oil royalties. The evidence appears to be sufficient to show that the parties orally agreed that the proceeds of the royalties sold should be divided equally between them. Both parties joined in the transfers of the oil interests which had been reserved, and no reason is seen why the parties could not by agreement dispose of the interests of plaintiff and defendant. It is unnecessary to consider what the rule of division would have been if no agreement had been made. While plaintiff alleged that she was induced to enter into the agreement for the division of royalty money by the fraud of defendant, we think the court was warranted under the evidence in holding to the contrary on that charge. So far as consideration is concerned, the interests of the parties and the nature of the transaction make it clear that there was no lack of consideration for the agreement.
There is a contention that the court erred in holding that the property purchased for a home in Newton was jointly owned by plaintiff and defendant. It was shown that the purchase of the property for joint use was discussed, and an agreement was reached that each should pay one-half of the price, which was $6,000. The property was acquired when father and daughter, who was then unmarried, were living harmoniously together, and for the purpose of procuring a home for both. It was agreed that the title to the property thus jointly purchased should be placed in the name of the plaintiff. Nothing in the evidence indicates that any part of
Error is assigned on the refusal of the court to find that a trust agreement had been made between the parties in settlement of their controversy. It appears that at one time when there was a dispute between the government and these parties as to the amount of tax due and by whom it should be paid, it being contended by plaintiff that the officer tried to make her pay a tax on all of the proceeds of the royalty sales, there was a suggestion that a compromise and adjustment of property interests be made so that their interests and rights might be definitely declared and understood. What was called a trust agreement was drawn up, but when it was presented to defendant he positively refused to sign the proposed agreement. Defendant testified that he had nothing to do with the proposed agreement, and it is conceded that he refused to sign it. Whatever the statements of the parties may have been respecting the proposed 'compromise, it did not culminate in an agreement, and hence the
The judgment is affirmed.
