Somers v. Somers, 39 Kan. 132

Somers v. Somers

39 Kan. 132 | Kan. | 1888

Opinion by

Simpson, C.:

The petition of the plaintiff in error, (plaintiff below,) contains two counts: the first for alimony alone, by reason of the aggression of the wife; and the second praying for a decree declaring a conveyance to land made by the husband to the wife, through a third party, to be in trust, and an assignment of this land as alimony. The blending of the two propositions in the statement of the second *136cause of action is somewhat peculiar, and we are in some doubt as to the proper construction to be given the pleadings, for if the land is to be decreed as alimony, this is a recognition that it is the absolute property of the wife, unincumbered by a trust, or any other equity; but if it was conveyed in trust, the husband has the legal right to insist on the protection of his beneficial interest without reference to the question of alimony. We shall have to view the statement of the first cause of action as one for alimony by the husband, as against the wife ; and the second as an action to declare a trust. No question arose in the court below, as to whether two such causes of action can be properly joined; nor is the matter referred to in the briefs of counsel filed in this court. We express no opinion about it.

As to the cause of action which asks alimony on behalf of the husband from the property of the wife, we can find no ease that authorizes it. The domestic relations will have to be readjusted by the legislature, and an obligation cast upon the wife to support the husband, before such an action can be maintained. The only question is, as to whether the conveyance of the Sedgwick county land by the husband to the wife was in trust. On its face, the conveyance was an absolute one. The deed was first made by husband and wife to Wall, and then a deed was executed by Wall to the wife. At the time of the execution of these conveyances, it was distinctly stated by the husband to Wall, that the object of the conveyance to the wife was to prevent the' children of the husband by a former marriage from ever receiving any benefit from the property. Substantially the same statement was made by the husband, as a witness in a former case pending between these parties. There is other evidence corroborative of this,, and there is some that tends to support the theory that the property was deeded to the wife as a contribution to her future support. On the other hand, there is testimony tending to show that the wife had declared before the marriage that her sole object was to get control of her husband’s property; and that after the conveyance had been executed, *137the wife had declared that she had agreed to reconvey it whenever the husband desired it. The conveyance was made to the wife on the day following a very serious trouble between the husband and one of his sons. Analyzing the testimony; considering the evidence in the light of all the surrounding circumstances; recollecting that while some of the testimony was in the form of depositions, the parties themselves were personally before the trial court, and fully recognizing the fact that there is evidence to sustain the findings and conclusions of the trial court on the particular question that the wife does not hold the land in trust, we cannot without a violation of the repeated declarations of this court, say that there was material error in these findings and conclusions. It is evident from the record that unusual effort had been expended in the preparation of the evidence, and much bad feeling generated by the litigation, but the trial seems to have been conducted in a spirit of fairness; some liberality was allowed in the admission of evidence on both sides; and probably every material fact presented that would tend to support the contention of the respective parties. This being the case, and no prejudicial error being apparent, we can do nothing else but recommend an affirmance of the judgment.

By the Court: It is so ordered.

All the Justices concurring.