112 Kan. 283 | Kan. | 1922
The opinion of the court was delivered by
Kasmir Korzuszkiewicz (whose family name appears to be pronounced Shusky, and is sometimes written in. that way) died May 24, 1920, survived by nine children. On November 6, 1917, he had executed to his son Nicodemus a deed to a quarter section of land, reserving a life interest. On November 5, 1918, Nicodemus executed a quitclaim for this tract to his sister Mary. On November 8, 1918, Kasmir executed to Mary two deeds covering four additional quarters, and a bill of sale for 54 head of cattle, she signing an agreement to give him one-third the crops on the land during his life. On July 8, 1920, this action was brought against Mary, Nicodemus and three other children, Martha, Felix and John, by the remaining four children, Tim, Mrs. B. C. Winkler, Mrs. Lizzie Tookert and Mrs. Lena Zorn, alleging among othej things that the deeds and bill of sale referred to were obtained by Mary from their father, who was of weak mind, by false pretenses, coercion and duress and under a promise to him that she would distribute the property equally among all the children. The plaintiffs claimed, and asked to recover, four-ninths of the land. A trial resulted in a judgment for the defendants, and the plaintiffs appeal.
1. The plaintiffs complain of the refusal of their demand for a jury. The original petition merely alleged that their father died intestate owning the land, that the plaintiffs as heirs owned each a 'one-ninth interest in it, and that the defendants unlawfully kept them out of possession. Doubtless because of the requirement of the present code (§ 619) that in ejectment if the claim is based upon an equitable title the facts upon which it is founded must be pleaded, an amended petition was filed setting out the execution of the deeds referred to and alleging their invalidity upon the grounds already stated. The situation is the familiar one in which the petition contains the allegations essential in ejectment but discloses that the defendants hold the legal title by deeds the effect of which must be nullified or modified by the interposition of a court of equity before the plaintiffs can be entitled to any relief, and the action is therefore an equitable one in which a jury is not a matter of right. If the case had come to trial under the original petition, doubtless upon the face of the pleadings the plaintiffs would have
“The plaintiffs’ right to possession and enjoyment.of the land as owners depended on their right to have the deed canceled. What they desired was the verdict of a jury on their right to cancellation. That was a subject of equitable cognizance, and the request for a jury trial as in an action at law was properly denied. . . . The facts stated in the petition did not disclose an equitable title. They disclosed a legal title, derived by operation of the statute of descents and distribution,' enjoyment of which was frustrated by a deed procured by undue influence exercised over the mind of their ancestor. The purpose was not to settle disputed claims of heirship, but to remove an impediment to the enjoyment of inherited property. While the answer contained a general denial, and so as a matter of form put in issue the capacity of the plaintiffs'to challenge the deed, the substantive issue was the voidable character of the deed, and the right to invoke the equitable remedy of cancellation. If the statutory form of petition in ejectment had been used, and a jury had been called on the theory the action was one at law, no doubt the court, when the statement of the case or the production of evidence disclosed the true equitable nature of the suit, would have exercised the power to determine the controversy for itself, as the court did in the replevin action under review in the case of Akins v. Holmes, 89 Kan. 812, 133 Pac. 849.” (Houston v. Goemann, 99 Kan. 438, 441, 442, 162 Pac. 271.)
In another case, where the plaintiffs sought to have a trust imposed upon real estate, it was said that if the action had been merely to recover possession it would have been in the form of ejectment. But, as the context appears sufficiently to show, no suggestion was intended that by ingrafting the allegations characteristic of ejectment upon a petition setting out an equitable cause of action its essential nature would be so changed that a jury trial would be a matter of right. (Rayl v. Brown, 108 Kan. 385, 195 Pac. 611.)
2. The deeds were without valuable consideration, and the plaintiffs contend that it was conclusively shown that the grantees occupied a fiduciary relation toward their father, and therefore a pre
3. In the course of the detailed findings of fact it was said that there was no evidence of want of mental capacity on the part of the grantor or of any undue influence, false statements, threats, coercion or duress on the part of the defendants, or of any promises by Mary to recover or hold the property in trust. The plaintiffs interpret these findings as meaning literally that no evidence was introduced having any tendency to support their allegations in relation to these matters — as indicating the same attitude of the court as though a demurrer to the evidence had been sustained. We regard them, however, as merely having the effect of a determination against the plaintiffs on these issues — deciding that the allegations of the petition were not proved. In the findings of juries, statements that there was no evidence of a fact have been held to mean that there was “no persuasive evidence, no preponderance of the evidence (Jolliff v. Railway Co., 88 Kan. 758, 760, 129
4. This correspondence took place between Mary Shusky and Mrs. Winkler, at the dates indicated:
“Dear sister Bohena: “Stafford Kansas September 24th 1918.
“I will take the pleasure this lovely fall morning and write you a few line in regard of business concerning pa. Now you remember while you were at Bllinwood & we were telling you we wanted higher wages and you said it wasent right fore us to colleck such wages & so on.
“Now we have not been there sence that time as we said we want all you to go and doe the work fore pa’s. Now I am writing this letter to you & you & Lena & the rest must go & see after pa & see his house is clean & that his horses & everything if you dont go & doe it your mouths are close.
“Now we haven’t never charge one red cent, but if you all wont doe it we will set our price & you all doe without.
“Now his house hesent ben cleaned his clothes seen to sence we were there in the early spring.
“Now those that clame their seifs children to that old man doe your part as John Martha & myself have done & all will be dealed even.
“Otherwise you all must be satisfied if you dont get nothing. Some one must go once a month during the winter fore he is old he is all your children father as well as he is mine.
“Give me a ans. if you will go ore if you wont go & you ask Lena if she .will doe the work fore pa fore nothing as we heve so it will be dealed even otherwise it wont.
“Give me a answer at once so I can make arrangements.
“Mary Shusky.”
“Dear Sister “Hutchinson Kan Sept. 26. 1918.
“I was very much surprised to have you write me such a letter and will answer it right back. I am willing to go over and take care of father now and you keep your mouth shut from now on. I went over and saw the Judge and he tells me I can collect wages if X wish what ever I think reasonable and the children that wont take their share of taking care of father must pay the one that does.
“Either you or John come over soon and let me talk to you & know how things are going to be. You forget sister — that I took care of you both — when you were little and did not ask pay as you want to take care of your father. You can write to Lena yourself I wont What do you mean by setting your price and the rest do without explain if you can soe I goed to clean the cettle today I goed to father to more and take care of him and I have is the back to more soe good bye to all of and write to me soe and say come to see me and it is nice to day. __ “Balbena Winkler.”
The plaintiffs contend that Mary’s letter shows conclusively that she occupied a fiduciary relation with respect to her father, that
5. The motion for a new trial included newly discovered evidence as one of the grounds. Affidavits were filed tending to show that grain on the farm, conceded by the defendants’ attorney in May, 1921, to belong to the estate of their father, was not turned over to the administrator; that no personal property was listed in the father’s name for March 1, 1920, but corn and wheat were listed by several of the defendants; that Mary had testified in the probate court that her father lived on the rent of the farm and that she did not know how it was all accounted for and did not know of any property or money that he had around the farm; and that an at
In view of the general and special findings in favor of the defendants we deem a further discussion of the evidence unnecessary. The discrimination on the part of the father between his children is extreme and striking, but the distribution of his property among them was a matter in which his discretion was absolute, and we find no ground for disturbing the decision of the district court.
The judgment is affirmed.