(190 P.)

Requested finding No. 6 differs from the ence laughed and said, "My mother won't go court's finding that Clarence deeded to his against me." During his lifetime the occamother, merely in the respect that the re- sion never arose when it seemed necessary quested finding in effect denies that any equi- that Clarence and his mother should have table title remained in Clarence. That was writings between them in reference to their the substance of the lawsuit. Requested find- property and business. While it may not be ing No. 14 was likewise more of a decision of proper to read all of this evidence into the the controversy than a finding of fact. Re- relations of mother and son in October, 1909, quested finding No. 7 was rejected because it is significant that while he lived there was the court believed the testimony on which its no break or change in the trustful relationown finding No. 4 was based. ship which, for the purposes of this suit, comIt is argued that finding No. 4 does not menced in the son's yielding to his mother's state that an agreement to reconvey was in request to stay on the farm after his father's fact made; the language being, "the mother death. The result is, finding No. 4 is well could then reconvey," etc. The finding, how-sustained by the evidence, and the court reever, is interpreted by the first conclusion of gards all the facts as settled by the findings law stated by the court, which is argumenta- of fact. tive in form, and refers to "the parol agreement entered into on the suggestion of I. B. Alter." The fact that reconveyance was part of the arrangement was elicited from the witness Alter by a leading question by the court itself, calling attention to the specific matter. Finding No. 5, that at the time Clarence

[1] Sections 1, 6, and 8 of the statute relating to trusts read as follows:

"Sec. 1. No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing." "Sec. 6. When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter. but the title shall vest in the former, subject to the provisions of the next two sections."

"Sec. 8. The provisions of the section next

agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold

deeded to his mother the relations between there were confidential and fiduciary, is assailed as contrary to the evidence. The farm was situated near Rossville. During the last few years of his father's life Clarence remained on the farm, at the request of his father and mother. After his father's death he continued to stay there, at the request of his before the last [section 6] shall not extend to mother, who then owned an undivided half, cases where the alienee shall have taken an ab while he had but one-eighth. After making the consent of the person with whose money solute conveyance in his own name without the deed to his mother, and without any con- the consideration was paid; or where such tract fixing his rights or accountability, Clar-alienee in violation of some trust shall have ence managed the farm, paid taxes, made purchased the land with moneys not his own; many lasting and valuable improvements, and or where it shall be made to appear that by appropriated the proceeds, except that he gave his mother and sister enough to live on. They lived in Rossville, and frequently went to the farm to visit, and to get butter and eggs and other supplies. Clarence purchased a horse and buggy for them to use. At the time of his death, Clarence had 31 head of horses and mules, 20 or 30 head of cattle, and a num- [2] Sections 6 and 8 relate to those purber of hogs, all acquired while he was work-chases of land which involve consideration ing the farm. It was necessary for him to borrow considerable money, and his mother said she was willing her interest in the farm should stand good for Clarence, because he had always provided for the family. Sometimes the plaintiff became discouraged at the outlook. On one occasion her mother-in-law

said to her:

"You know, Fannie, Clarence has been a good boy, and worked all his life and kept us. We aren't going to let you want. Clarence expects some day to get that home; the boys don't want the farm, and Annie don't want the home; everything will come out all right."

the land or some interest therein in trust for the party paying the purchase money or some part thereof."

Gen. Stat. 1915, §§ 11674, 11679, 11681.

paid or furnished by one person and title taken in another, and have no application to the present controversy. Therefore section 1 alone is to be considered.

The defendants say the trust in this case, if any, was an express trust, and the agreement by which it was created was not in writing. The plaintiff says the trust arose by implication of law.

In the case of Morrall v. Waterson, 7 Kan 199, the syllabus reads:

"In the absence of fraud, mistake or acci dent, the grantor, in an absolute conveyance re citing a valuable consideration and acknowledg ing its receipt, and where it is admitted a valuThe plaintiff herself furnished the money able consideration was actually received, cannot to build the silo on the farm. When she wrote show a parol agreement that the grantee was the check for it, she said to Clarence, "Maybe to hold the land conveyed in trust for his

Goff v. Goff,

The clause, "and where it is admitted a, either actual or constructive. valuable consideration was actually receiv- 98 Kan. 201, 158 Pac. 26. This being true,

ed," was inserted to conform the decision to the facts of the case. It may be eliminated without affecting the rule of law, because absence of consideration does not supply the writing which the statute requires.

"The plaintiff, as the holder of the school land certificate, was practically the owner of the land, subject to the claim of the state for the unpaid purchase price. He assigned the certificate to his father for a recited money consideration. This amounted to a conveyance of the title, and in the absence of fraud or mistake is regarded as conclusive evidence of the transfer of the beneficial interest, precluding a showing of want of consideration for the purpose of establishing an implied trust." Goff v. Goff, 98 Kan. 201, 204, 158 Pac. 26, 27.

Unless, therefore, there were fraud, accident, or mistake in the transaction under analysis, the deed was not impeachable by parol evidence which would contradict its legal effect as an absolute conveyance. 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, L. R. A. 1915E, 648.

how did fraud enter into the transaction under consideration, and. if there were fraud, what was its nature? The answer is: Constructive fraud, arising from abuse of the confidential relation existing between grantor and grantee.

The mere fact that a conveyance is made by a child to a parent, or by a parent to a child, without consideration, is not enough to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 135 Pac. 996, L. R. A. 1915E, 648. There must a confidential relation, a transaction induced by the relation, and a breach of the confidence reposed. When those conditions are satisfied, the law implies a trust. The principle is illustrated by the decision in the case of Bartholomew v. Guthrie, 71 Kan. 705, 81 Pac. 491. In that case the grantors conveyed land in litigation to their attorney, to enable him to deal with it advantageously, under an oral agreement that he would account for the fruits of the litigation. The attorney was employed to protect the interests of the grantors. The law declares the relation of attorney and client to be fiduciary. The deed was a step in furtherance of the purposes of the employment, and refusal to account for the fruits of the The conveyance was not the result of acci- litigation constituted constructive fraud, raisdent or mistake, and the plaintiff must obtaining a trust outside the statute, by implication relief, if at all, on the ground of fraud. The of law. The opinion of the court did not dipetition charged actual fraud. It was alleg- late on the fiduciary character of the relaed the mother procured the deed on a false tion between attorney and client. To have promise, which, at the time it was made, she done so would have been to pad the opinion. had no intention of keeping. The court found When the fact of the relation was stated, otherwise (finding No. 13). the quality which the law attaches to it was stated, and it was sufficient for the court to say:

"The facts stated are such that a trust arises by implication of law." 71 Kan. 710, 81 Pac. 492.

[3, 4] The statement may be found in opinions of the courts that trusts may be raised in equity with respect to property acquired without fraud, when it would be against equity that it should be retained. In that form the statement furnishes no rule for the decision of controversies. Going further, it is sometimes said that a constructive trust will arise The principle under consideration is furwhenever it would be inequitable for the per- ther illustrated by the decision in the case of son holding the legal title to retain the prop- Lehrling v. Lehrling, 84 Kan. 766, 115 Pac. erty. The statement is too broad, and, if 556, in which a father made a deed to his applied literally, would nullify the first and children, to enable them to raise money upon sixth sections of the trust statute. How-it for his benefit. In that case the confidenever inequitable and morally reprehensible it may be that property conveyed upon an express oral trust should be retained in violation of the agreement, a trust may not, under "The father was in Germany, and the children were at home, where the business must be done. those circumstances, be ingrafted upon a deed The plan did not seem unreasonable. Exabsolute in its terms, because if that were the penses would necessarily accumulate, if there rule deeds would no longer be valuable as mu- should be delay in executing the mortgage and niments of title. In the opinion of the Legis-procuring the loan. The father was in trouble, lature, it is better for the social order and far from home, and naturally desired to save general welfare that a few persons, who might not observe the statute, should suffer hardship, than that the security of all titles should be destroyed. Therefore it is held that mere repudiation of the oral agreement

tial relation between the parties to the deed was the fact which controlled the decision:

as much of his property as possible after satisfying the proper claims of his wife; the necessity of speedy action was apparent and was emphasized in the letter. He acted promptly, as his children requested, and in the confidence that a father may be presumed to have in his

(190 P.)

To these facts the law as expounded in the, ise that his interest would be reconveyed to case of Wood v. Rabe et al., 96 N. Y. 414, 48 him, but the essence of the security consisted Am. Rep. 640, was applied; citation of fur- in the fact that he was dealing with his ther authority being regarded as unnecessary. mother. The statute of frauds and the statute of trusts of the state of New York, referred to in the opinion of the court, are essentially the same as the statutes of this state relating to the same subjects. The facts of the case and the conclusion of the court are summarized in the headnote, which reads as follows:

RUBY V. BAKER et al. (No. 22778.)

tention, he relies upon the recent case of Crockery Co. v. Cleaver, 104 Kan. 642, 180 Pac. 273. Language is used in that opinion

(Supreme Court of Kansas. May 8, 1920. On seemingly tending to sustain his view, but it

Motion for Rehearing, June 14, 1920.)

must be interpreted in the light of the facts to which it is applied. There an action was brought against two partners on a firm account. One of the defendants pleaded as a set-off a claim in a larger sum for damages on account of an injury inflicted upon her by found to have a valid demand for $114.30 the wrongful act of the plaintiff. She was more than the partners owed the plaintiff, and was given a judgment for that excess. If the plaintiff's own claim had been reduced or defeated altogether, the judgment would have been correspondingly increased. That judgment was reversed on the ground of a

Appeal from District Court, Osborne want of mutuality in the opposing demands County.

Action by T. B. Ruby against John Baker and six others with plea of set-off by defendant Baker. From the overruling of his motion to strike out the plea of set-off and the overruling of a demurrer thereto, plaintiff appeals. Affirmed.

Turner & Stanley, of Mankato, and Lutz & Jordan, of Beloit, for appellant.

A. E. Crane, of Topeka, and N. C. Else, of

Osborne, for appellees.

MASON, J. T. B. Ruby sued John Baker and six others, charging them with assault and battery, including the administering of a coat of tar and feathers. The defendants in addition to a general denial pleaded as a set-off a claim of Baker for damages for the plaintiff having debauched his wife and alienated her affections. This portion of the answer was attacked by a motion to strike out and a demurrer, both of which were overruled; the plaintiff appealing from the rulings.

The sole question presented is whether such set-off is admissible. Formerly in this state a set-off could be pleaded only in an action on contract, and was required to be founded on a contract or judgment. Gen. Stat. 1901, § 4532. For this provision the following was substituted in 1909:

"A set-off can only be pleaded in an action in which a recovery of money is sought, and

must be a cause of action for the recovery of money." Gen. Stat. 1915, § 6992 (Code Civ. Proc. § 100.)

which had been litigated. Obviously, one partner had (in the legal sense) no interest whatever in any demand of the other for an affirmative judgment against the plaintiff, and could not have been affected by it. The cause of action upon the tort was not used for merely defensive purposes, but as the foundation for affirmative relief. To a claim asserted in that manner by a defendant the term "set-off" is properly applied (Gen. Stat.

1915, § 7314 [Code Civ. Proc. § 410]; 34 Cực.

644; 25 A. & E. Encyc. of L. 489), although

etymologically it may not seem entirely ap

propriate.

In the present case the answer does not ask that, if the plaintiff shall fail to establish the assault and battery, the defendant Baker shall be allowed damages against him for alienating his wife's affections, or that, if both injuries are proved and the damages for the assault are found to be less than for the alienation, Baker shall have judgment for the difference. Its prayer is merely that, if the plaintiff be found to have been injured by the wrongful act of the defendants, the sum fixed as the measure of his compensation therefor shall have credited upon it the amount of damage sustained by Baker by reason of his injury; the language clearly indicating a waiver of any claim to affirmative relief in any event. Nothing whatever is asked in behalf of Baker if the plaintiff's claim is not upheld, and no judgment for the difference is sought if the plaintiff should be adjudged to have been damaged, but in a less amount than Baker. In that situation the other defendants have an interest in Baker's cross-demand. So far as the amount decided to be due to him for his injury may by its application thereto reduce or wipe out any award made to the plaintiff on account of the wrong inflicted upon him, they are affected by it, because their obligation to make payment to the plaintiff is by that use of it diminished or extinguished, and no other force

A tort may therefore be pleaded as a setoff in an action on a tort. Cooper v. Seaverns, 97 Kan. 159, 155 Pac. 11. The plaintiff contends, however, that the cause of action sought to be used here as a set-off is not available because of want of mutuality; his claim being against all the defendants, while the cross-demand against him exists in favor of but one of them. In support of this con- is sought to be given it.

(190 P.)

The spirit of the Code favors the settle-24 R. C. L..868, quoting note, Riegler v. Tribment in one action of different controversies une Association, 40' App. Div. 327, 57 N. Y. where the circumstances interpose no obsta- Supp. 989. The right to plead by way of recle, but recognizes the principle upon which coupment a cross-demand existing in favor of the requirement of mutuality in cross-de- but one of two defendants has been justified mands is based by providing that except in by an argument, the whole of which is here action to enforce liens the causes of action reproduced: united must affect all the parties. Gen. Stat. 1915, § 6979 (Code Civ. Proc. § 88).