145 P.2d 447 | Kan. | 1944
The opinion of the court was delivered by
This was an action to enforce a trust relating to land. Plaintiffs prevailed and defendants appeal.
The action was instituted by Katherine Staab, Julia Staab, Elizabeth Staab Berens, Marie Staab Dwyer, and Alois W. Staab, sisters and a brother of the defendants, Alex V. Staab and John C. Staab. The defendant, Christina Staab, is the wife of John C. Staab.
The petition was originally framed as one count but was later separated into two counts over appellees’ objection and as a result of motions filed by appellants to require appellees to elect or separately state and number their respective causes of action. The appeal is from orders overruling defendants’ separate demurrers to each count of the second amended petition. The demurrers were all based on four identical grounds. Only two of such grounds are urged by appellants now and it is to them that we shall direct our attention. They are that the facts alleged in each count are insufficient to constitute a cause of action and that each cause of action, if one existed,
The material allegations contained in the first count, in substance, are:
Plaintiffs and defendants, John C. and Alex V. Staab, are the only children of Carl Staab, who died May 21, 1937; Carl Staab was an uneducated person; he could not read or write; he could not even sign his own name and orally had granted to John C. Staab the privilege of signing his name to all necessary documents; he placed the utmost confidence and trust in his son, John, in all matters of business where written instruments were required and sought the advice of John on all such matters; the son, Alex, worked with John and enjoyed the same confidence from his father except in the handling of written instruments; in July, 1931, there was considerable oil activity in Ellis county where the land in question was located; John and Alex orally suggested to their father that since it was necessary for them to transact his business by reason of his age, failing health and inability it would be more convenient and to his interest and to the interests of all the children if he executed deeds to John and Alex covering the lands described in the petition; John and Alex advised the father that if he would convey such lands to them they would hold the property in trust for him during his lifetime, account to him for all proceeds received therefrom and at his death they would make an equal division of the property among all of his children; the father had absolute confidence in his sons and orally agreed'to that arrangement; on July 24, 1931, he executed deeds to the defendant sons covering the land in question.
It was further, in substance, alleged:
The father died testate on or about May 21, 1937; in his will he left to the two defendant sons all the property which he owned at his death except certain nominal sums in cash which he bequeathed to each of the plaintiffs; the will is in the possession and control of the defendants and a copy thereof cannot be attached; immediately after the father’s funeral on May 23, 1937, plaintiffs and defendants had a family conference; at that time John stated he and Alex would give Katherine Staab and Julia Staab each $700 and would give Elizabeth, Marie and Alois Staab each $500 from the proceeds which had accumulated from the father’s life estate; such sums have been paid to all of the plaintiffs except Katherine and Julia Staab; John inquired whether any of the children desired to see the will but
It was further, in substance, alleged:
During the year 1940 it became a matter of common knowledge that John and Alex Staab were receiving large sums of money from oil royalties from the lands in question; the confidence of plaintiffs in John and Alex began to weaken and on July 11, 1941, plaintiffs held a conference at Hays, Kansas; they appointed Roy Dwyer to speak to John and Alex in their behalf for the purpose of obtaining a definite settlement of their property rights; Roy Dwyer so advised John and Alex but they informed him they preferred to talk with the plaintiffs; during the evening of July 11, 1941, all of the plaintiffs, except Alois W. Staab who was not present, were informed by Alex and John that they had discussed the matter and had decided to keep the property conveyed to them by their father and would make no conveyance to plaintiffs or recognize their interests in the property other than to pay them a nominal sum in cash; on July 11, 1941, John and Alex repudiated the arrangement, agreement and trust which they had with their father at the time he conveyed the property to them for the benefit of himself and his children.
Paragraph XI alleged:
“By reason of the confidential relationship which existed between the defendants and Carl Staab and by reason of the oral agreement set out in para*72 graph V hereof, a trust arises in. favor of the plaintiffs by implication of law, and the plaintiffs are each of them entitled to a one-seventh (1/7) interest in the property described in paragraphs III and V hereof, and are each entitled to a one-seventh (1/7) of all the rents and royalties derived from said property since the death of their father Carl Staab, May 21, 1937.”
The second count made all the averments contained in the first count except paragraph XI a part of the second count and, in substance, further alleged:
Defendants had no intention at the time of entering into the trust agreement for the benefit of the father and all of the children to keep the agreement but made the agreement for the wrongful purpose of obtaining a deed to the land in order that they might obtain the interest of plaintiffs on the death of their father; by reason of the trust agreement made with the father and by reason of the deceit practiced by defendants upon their father, Carl Staab, a trust has arisen in favor of plaintiffs by implication of law and plaintiffs, and each of them, are entitled to a one-seventh (1/7) interest in the land and in the rents and royalties derived therefrom since the father’s death.
Before considering the demurrers to each count we pause to note appellees’ contention that the facts pertaining to actual fraud, now alleged in count two and formerly pleaded as a part of count one, all actually constitute but one cause of action. Appellees believe they should not have been required to separately state and number the charge of actual fraud as a separate and distinct cause of action. The theory of their contention is the petition stated a cause of action on the doctrine of an implied trust and that such a trust may result from constructive or actual fraud. It has been held that if a petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories relief is sought, the petition is insufficient. (Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 854, 22 P. 2d 965; Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772.) We assume it was probably on that basis that the trial court sustained appellants’ motion to require appellees to elect upon which theory they would rely or to separately state and number the respective causes of action. In view of the manner in which the trial court later, when ruling on the demurrers to the respective counts, considered the petition in its entirety we do not regard the former order requiring a separation of the precise theories as very important in this particular case. We also observe that all
But let us for the moment consider count one separately. Did it state a cause of action on any theory? The first count, in substance, alleged:
(1) The existence of a confidential relation between the aged and uneducated father and his sons; (2) a transaction induced by that relation; and (3) a breach by defendants of the confidence reposed. When those conditions exist the law implies a trust commonly known as a constructive trust. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996; Silvers v. Howard, 106 Kan. 762, 769, 190 Pac. 1.) We hold the first count stated a cause of action on the theory a trust arose by implication of law.
Did the second count state a cause of action? From what has been said it is clear actual fraud is not necessary to create a trust by implication of law. That fact, however, does not mean an implied trust cannot also arise from actual fraud. It often so arises although proof of such fraud is frequently difficult. A trust which the law implies from existing facts and circumstances, that is, a trust which arises by operation of law, may be established by either actual or constructive fraud. (Kahm v. Klaus, 64 Kan. 24, 26, 67 Pac. 542; Gemmel v. Fletcher, 76 Kan. 577, 586, 92 Pac. 713; Clester v. Clester, supra, Ballard v. Claude Drilling Co., 149 Kan. 506, 510, 88 P. 2d 1021.) On a demurrer the allegation of facts constituting actual fraud, being properly pleaded, are, of course, accepted as true. Here they were so pleaded. We hold the second count stated facts which constituted a constructive trust based on actual fraud and, with the essential allegations from count one incorporated in count two, also a constructive trust under which it was not necessary to prove actual fraud by appellants at the inception of the transaction with their father.
"In the cases at bar, fraud did not necessarily enter into the transactions until the abuse of the alleged confidential relations, or, in other words, a breach‘of the confidence reposed. It is true that under the second counts of these petitions, plaintiffs allege actual fraud on the part of the defendants at the time the properties were conveyed to them, but it appears to me that from the entire petitions it must be inferred that the alleged fraud was not discovered by the plaintiffs until the defendants repudiated their trust on July 11, 1941.”
From the above quotation it will be observed the trial court. . referred to petitions. The court at that time was considering identical demurrers to a petition in a similar action between the samé
Appellants, in the district court and here, rely primarily upon the case of Herthel v. Barth, 148 Kan. 308, 81 P. 2d 19, 119 A. L. R. 326, as authority for their contention the instant action is barred.
It may be helpful to comment briefly concerning the fact that the petition in this case and in the case of Staab v. Staab, No. 36,026, post, is now framed in two counts. The fact the petitions are so framed simply serves to apprize appellants of the theories upon which appellees seek the same identical relief. The relief sought, irrespective of the theories alleged, is to impress the land with a trust. In actual practice each case will be tried as one cause of action. In each action all the available evidence on both theories of relief, of course, will be adduced and the relief sought will be granted, if established, on either theory.
The judgment overruling the demurrers is affirmed.