Horsley v. Hrenchir , 146 Kan. 767 ( 1937 )

The opinion of the court was delivered by

Allen, J.;

This is an appeal from an order overruling the demurrer of the defendants to the plaintiff’s amended petition.

The petition alleges that Benjamin Franklin Bailey died intestate April 11, 1909, leaving as his sole and only heirs at law Margaret A. Bailey, his widow, Mayma Bailey and Paden Bailey, his daughters, and that at the time of his death he was the owner of the real estate in question. Upon the death of Benjamin Franklin Bailey his' widow, Margaret A. Bailey, became the owner of an undivided one-half interest in the real estate, and the daughters, Mayma and Paden, each became the owners of an undivided one-fourth interest therein; that no division of the real estate has ever been had, and that it was occupied by the widow during the remainder of her life. The daughter Mayma Bailey later married W. C. Horsley, and the daughter Paden Bailey later married Permin Hrenehir.

On November 14, 1911, Mayma Bailey Horsley and her husband, W. C. Horsley, conveyed, by quitclaim deed, the undivided one-fourth interest of Mayma Bailey Horsley to Margaret A. Bailey, which deed was duly filed for record.

The petition further alleged that the conveyance was without consideration and “upon the express oral agreement with the said Margaret A. Bailey that she would hold said interest in trust for Mayma Bailey Horsley, along with the other undivided interests in said real estate until the time of her death, when the whole tract of land above described should descend to her daughters, the said Mayma Bailey Horsley and Paden Bailey Hrenehir”; that on July 25,1921, without the knowledge or consent of Mayma Bailey Horsley or her husband, W. C. Horsley, and in violation of said trust agreement, Margaret A. Bailey conveyed, by warranty deed, the above-described real estate to her daughter Paden Hrenehir, which deed was filed for record August 14, 1924.

The petition further alleges that the conveyance to Paden Hrenchir was without consideration, and procured by fraud and undue influence exercised upon Margaret A. Bailey by Paden Hrenehir and her husband, Permin Hrenehir, and that on the 3d day of August, 1924, Margaret A. Bailey died intestate, leaving as her sole and only heirs at law, Mayma Bailey Horsley and Paden Bailey Hrenehir; that on August 30, 1931, Mayma Bailey Horsley died intestate, leaving as her sole and only heirs at law her husband, W. C. Horsley, and a son, Franklin G. Horsley, the plaintiff.

The petition then alleges the conveyance, by quitclaim deed, by W. C. Horsley to Franklin G. Horsley, the plaintiff, placing the entire interest, if any there is, arising out of the oral trust agreement, in the plaintiff, Eranldin G. Horsley. This deed was also filed for record; that on account of the trust agreement the plaintiff Franklin G. Horsley and the defendant Paden Hrenchir are the absolute owners of the real estate in question, each being the owners of an undivided one-half interest.

For his second cause of action plaintiff prays for partition.

Section 182 of the Restatement of Restitution and Unjust Enrichment reads as follows:

“Where the owner of an interest in land transfers it inter vivos to another upon an oral trust in favor of the transferor or upon an oral agreement to reconvey the land to the transferor, and the trust or agreement is unenforceable because of the statute of frauds, and the transferee refuses to perform the trust or agreement, he holds the interest upon a constructive trust for the transferor, if—

(a) the transfer was procured by fraud, misrepresentation, duress, undue' influence or mistake of such a character that the transferor is entitled to restitution, or

(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or

(c) the transfer was made as security for an indebtedness of the transferor.

“Caveat: The Institute takes no position on the question whether the transferee holds upon a constructive trust for the transferor an interest in land transferred t,o him inter vivos, where he orally agreed with the transferor to hold it in trust for the transferor or to reconvey it to the transferor, except under the circumstances stated in this section.”

The Kansas rule is in accordance with the restatement above quoted. The petition does not allege the transfer from the daughter to her mother was procured by fraud, misrepresentation, duress, undue influence or mistake. It does not allege that the transferee at the time of the transfer was in a confidential relation to the transferor, nor that the transfer was made to secure a debt. The case therefore falls within the statute of frauds (G. S. 1935, 67-210), according to the settled rule long adhered to by this court. (Morrall v. Waterson, 7 Kan. 199; Ingham v. Burnell, 31 Kan. 333, 2 Pac. 804; Gee v. Thrailkill, 45 Kan. 173, 25 Pac. 588; Rogers v. Richards, 67 Kan. 706, 74 Pac. 255; Blackwell v. Blackwell, 88 Kan. 495, 129 Pac. 173; Clester v. Clester, 90 Kan. 638, 135 Pac. 996; Goff v. Goff, 98 Kan. 201, 158 Pac. 26; Bolin v. Krengel, 116 Kan. 459, 227 Pac. 266; Mullen v. Hume, 130 Kan. 240, 285 P. 2d 626.)

Appellee relies upon Smith v. Nyburg, 136 Kan. 572, 16 P. 2d 493; Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164, and other eases of similar type. Cases where the owner of property has entered into an agreement to devise property for services rendered are very numerous. In this situation the court is interested in the doctrines of part performance and specific performance. In such cases the promisee may bring an action in the nature of an action for specific performance, and where the proof is ample the court will give relief by impressing a trust on the heirs or devisees of the promisor in favor of the promisee. These cases are not in point in this controversy.

We think the court was in error in overruling defendants’ demurrer. The judgment must be reversed. It is so ordered.