84 Kan. 37 | Kan. | 1911
There are thirty-three errors assigned, but few of which require comment. It is claimed that the court erred in not requiring certain special questions to be answered more definitely by the jury. All of the questions were so complex and involved that the court might properly have refused to submit them in the first place. The appellants also submitted to the court twenty written requests for instructions upon questions of law and of fact which they claimed were pertinent to the issues, and error is predicated upon the refusal to prepare and give instructions upon these matters. We think the court properly denied the requests, none of which was in the form of a written instruction.
The court, however, erred in not directing judgment in favor of the appellants on the plea of the statute of limitations. There can be no question that the action was not brought within two years from the time the alleged fraud should have been discovered. (Black v. Black, 64 Kan. 689; Lewis v. Duncan, 66 Kan. 306; Donaldson v. Jacobitz, 67 Kan. 244; Rogers v. Richards, 67 Kan. 706; Hutto v. Knowlton, 82 Kan. 445.)
In Black v. Black, supra, a party was charged with unfaithful administration of an estate of a deceased person. It appeared that she had filed her report and account as required by law for the express purpose of affording information to' all persons interested, and it was held that these public records gave constructive notice to all parties as to what was done. In Hutto v. Knowlton, supra, the foundation of the rule as to constructive notice of fraud by public records sufficient to start the statute of limitations was said to consist in this:
“Where a public record is required by law to be kept as a source of. information respecting property rights and interest a duty rests upon anyone to whom the in*42 formation is material to improve with diligence the opportunity of learning that which the record discloses. It follows that if the opportunity be neglected the interested person will be bound to the same extent as if he had in fact examined the record. But the rule is no broader than its basis', and if for any-reason no obligation exists to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain.” (82 Kan. -448.)
It is insisted that a fiduciary relation existed between the parties and therefore the statute would not begin to run until after the actual discovery of the alleged fraud; that by reason of the relation of trust and confidence the plaintiffs were not required to examine the records to discover what had been done. The agreement which the plaintiffs relied upon was that the appellants were to manage the property for the plaintiffs’ benefit. The jury found in answer to several special questions that the appellants were the agents of the plaintiffs in all that they did in connection with the estate and the sale of the land, but we have not been cited to any witnesses who so testified. If they were agents of the plaintiffs it was because of the cir’•cumstances under which they took possession of the property. The plaintiffs offered no evidence in -support of the allegation that prior to his death Nils Nyberg requested or obtained a promise from the appellants to take care of his wife and child or to look after his estate. Both appellants denied that any such conversation took place. Nor did plaintiff Marie testify that the appellants agreed to take the property and look after it for the benefit of the plaintiffs. The appellants denied this, and testified that after the death of Marie’s husband she told them to take the land and do the best they could with it in order to save themselves."
It appears from the testimony of John P. Grant, the administrator, and H. Helstrom, who was appointed guardian of the minor in the proceedings to sell the real estate, that all the parties that had any
This appears to be the kind of a case to which the statute of limitations was made to apply. Twenty-five
The son testified, in substance, that when he was eighteen years old he first learned from his mother that the land had once belonged to his father, and he took .the deed found among some old papers with the intention of having inquiries made about their rights -in the-land. He waited until he was twenty-seven years of’ age before he brought the action. During all this time-
A careful examination of the record fails in our opinion to disclose fraud or bad faith on the part of the appellants. The jury have found otherwise, but the case should not have been submitted to a jury, for the reason that the plaintiffs have slept too long upon their rights to maintain the action.
The judgment is reversed and the cause remanded, with direction to enter judgment for the appellants.