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(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 requested finding in effect denies that any equitable title remained in Clarence. That was the substance of the lawsuit. Requested finding No. 14 was likewise more of a decision of the controversy than a finding of fact. Requested finding No. 7 was rejected because the court believed the testimony on which its own finding No. 4 was based.

It is argued that finding No. 4 does not state that an agreement to reconvey was in fact made; the language being, "the mother could then reconvey," etc. The finding, however, is interpreted by the first conclusion of law stated by the court, which is argumentative 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 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 con

tinued to stay there, at the request of his mother, who then owned an undivided half, while he had but one-eighth. After making the deed to his mother, and without any contract fixing his rights or accountability, Clarence managed the farm, paid taxes, made many lasting and valuable improvements, and 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 number of hogs, all acquired while he was working 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."

sion never arose when it seemed necessary that Clarence and his mother should have writings between them in reference to their property and business. While it may not be proper to read all of this evidence into the relations of mother and son in October, 1909, it is significant that while he lived there was no break or change in the trustful relationship which, for the purposes of this suit, commenced in the son's yielding to his mother's request to stay on the farm after his father's death. The result is, finding No. 4 is well sustained by the evidence, and the court regards all the facts as settled by the findings of fact.

[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 before the last [section 6] shall not extend to solute conveyance in his own name without cases where the alienee shall have taken an ab the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the party paying the purchase money or some part thereof."

the land or some interest therein in trust for

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

[2] Sections 6 and 8 relate to those purchases of land which involve consideration 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 valuable consideration was actually received, cannot show a parol agreement that the grantee was to hold the land conveyed in trust for his

The plaintiff herself furnished the money to build the silo on the farm. When she wrote the check for it, she said to Clarence, "Maybe we had better have mother O. K. this." Clar- benefit."

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 r. 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.

The conveyance was not the result of accident or mistake, and the plaintiff must obtain relief, if at all, on the ground of fraud. The petition charged actual fraud. It was alleged the mother procured the deed on a false promise, which, at the time it was made, she had no intention of keeping. The court found otherwise (finding No. 13).

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.

and a

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, 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

litigation constituted constructive fraud, raising a trust outside the statute, by implication of law. The opinion of the court did not dilate on the fiduciary character of the relation between attorney and client. To have done so would have been to pad the opinion. When the fact of the relation was stated,

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 those circumstances, be ingrafted upon a deed absolute in its terms, because if that were the rule deeds would no longer be valuable as muniments of title. In the opinion of the Legislature, it is better for the social order and 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:

"The father was in Germany, and the children were at home, where the business must be done. The plan did not seem unreasonable. Expenses would necessarily accumulate, if there should be delay in executing the mortgage and procuring the loan. The father was in trouble, far from home, and naturally desired to save 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:

"The interest of plaintiff in certain real estate, which interest was of the value of about $10,000, was sold on execution issued upon a judgment against him, and the time for redemption by him expired before he learned of the sale. At the request of his mother and upon the advice of her attorney, his former guardian, he having a short time before arrived of age, and for the purpose of enabling her to redeem for his benefit, and upon her oral promise to hold the interest acquired and reconvey to him upon being paid her loans and advances, he confessed a judgment to her for $2,000, which sum she claimed she had loaned to him, but which he insisted was a gift. By virtue of

this judgment the mother redeemed and received the sheriff's deed, but refused to convey to plaintiff on demand and tender of the amount of her judgment and of the advances made by her with interest. In an action to enforce the oral agreement, held, that it was upon a good and sufficient consideration; and, as it appeared that plaintiff was induced to acquiesce, not by the promise alone, but by it and the confidential relation conjoined, it could be enforced in equity, and the statute of frauds could not be invoked as a bar to relief." 96 N. Y. 414, 48 Am. Rep. 640.

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A criticism of the Bartholomew and Lehrling Cases, contained in an address before the Kansas State Bar Association, on the subject "Trust Estates in Kansas" (Proceedings 1916, page 69), fails to take note of the fact which controlled the decision in each instance the confidential relation between the parties to the conveyance. Both decisions are well supported by authority. Note, 39 L. R. A. (N. S.) 923, 926.

In the case under decision it is clear that the filial and the business relations of Clarence Silvers to his mother were of the most trustful and confiding kind. To his mind his deed to his mother did not affect his interest in the land, and he proceeded to stock it and farm it and improve it, to marry and make it his homestead, all on what seemed to him good security. There was, to be sure, a prom

[5, 6] In order to clarify the subject a little more, a word may be added relating to the place of the oral agreement to reconvey in cases of this character. A conveyance made with an accompanying oral agreement to reconvey is disclosed. The statute not having been observed, no trust was created by virtue of the conveyance and the oral agreement. That, however, is not necessarily the end of the matter. The circumstances may have been such that a trust arises by implication of law, according to the rules which have been laid down. In considering that subject, the oral agreement is simply one of the circumstances of the case. It must be accompanied by other circumstances, which, either by themselves or in connection with the oral agreement, establish fraud, actual or constructive, or other equitable basis for raising a trust by implication. The trust by implication may have the same ultimate effect on the rights of the parties as would result from enforcement of the oral agreement. In that event the oral agreement may be said to aid the implication; but it is not sufficient, standing alone, to raise the implication. Franklin v. Colley, 10 Kan. 260; Bartholomew v. Guthrie, 71 Kan. 705, 710, 81 Pac. 491. In this instance the proof was that under the influence of the confidential relation the conveyance was made for a specific purpose. When the purpose was accomplished, the grantee held the legal title for the benefit of the grantor, whether there were an agreement to reconvey or not.

[7] The defendant pleaded the statute of limitations, and insists that findings 14, 15, and 16 show that the action was barred. The court found that repudiation of the trust occurred in October, 1917 (finding No. 9), and, if so, the action was commenced in due time. Finding No. 14 does not state that Emmett Silvers, acting as the agent of Ellen Silvers, notified the plaintiff that she had no interest in the farm, and he could not commit Ellen Silvers to a renunciation of trust without her authority. Finding No. 16 relates to the subject of possession. Ellen Silvers was entitled to be admitted to possession as a co-owner. Emmett Silvers, acting as her agent, took full possession, and excluded the plaintiff, thereby trespassing upon the plaintiff's right of possession; but the finding does not extend the agency to include authority to deny equitable title to a share of the land. The result is that findings 14 and 16 fall short of showing repudiation of the trust by Ellen Silvers, which occurred as a result of the conduct described in finding No. 9.

The judgment of the district court is affirmed.

All the Justices concurring.

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tention, he relies upon the recent case of Crockery Co. v. Cleaver, 104 Kan. 642, 180 Pac. 273. Language is used in that opinion seemingly tending to sustain his view, but it 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 the wrongful act of the plaintiff. She was found to have a valid demand for $114.30 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.

which had been litigated. Obviously, one partAction by T. B. Ruby against John Baker ner had (in the legal sense) no interest whatand six others with plea of set-off by de-firmative judgment against the plaintiff, and ever in any demand of the other for an affendant 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.)

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

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 Cyc. 644; 25 A. & E. Encyc. of L. 489), although etymologically it may not seem entirely appropriate.

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 dfminished or extinguished, and no other force is sought to be given it.

(190 P.)

une Association, 40 App. Div. 327, 57 N. Y. Supp. 989. The right to plead by way of recoupment a cross-demand existing in favor of but one of two defendants has been justified by an argument, the whole of which is here reproduced:

The spirit of the Code favors the settle- 24 R. C. L. 868, quoting note, Riegler v. Tribment in one action of different controversies where the circumstances interpose no obstacle, but recognizes the principle upon which the requirement of mutuality in cross-demands is based by providing that except in action to enforce liens the causes of action united must affect all the parties. Gen. Stat. 1915, § 6979 (Code Civ. Proc. § 88).

Where, in a suit against a number of de fendants for collectively inflicting an injury upon the plaintiff, a cross-demand existing in favor of one of them is set up purely in a defensive way, his codefendants have the same interest as himself in its establishment. Its application to the reduction or cancellation of the obligation to the plaintiff inures to the benefit of all the defendants alike, since that is the effect of any payment or part payment. Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881. No reason is apparent why its use in that manner should not be allowed.

It is true that the precise point presented seems not to have received much discussion by the courts, but the reason doubtless is that a defendant rarely uses for purely defensive purposes a cross-demand capable of being made the basis of affirmative relief. It has been held, however, that a claim of one of several defendants against the plaintiff for a sum greater than that sued for may be used by way of set-off as a defense, but that no judgment for the surplus could be rendered; the court saying:

"If, as the verdict tends to show, the set-off was due to only one of the defendants, this would constitute a good defense to plaintiff's action, but would not authorize a recovery for the excess, for the reason that such recovery would require a change, to that extent, of the parties to the judgment. In fact, it would, in effect, require two judgments; one in favor of one defendant for the certified balance, and the other in favor of all the defendants for

the costs of the suit. This cannot be done in legal proceedings. But it furnishes no reason why such demand should not be a complete answer to the plaintiff's right of recovery." Locke v. Locke, 57 Ala. 473, 475.

"The note upon which the plaintiff sought to recover was made by the two defendants jointy; and it is insisted that the two defendants were not entitled to recoup the damages arising on the breach of a warranty, on the sale which constituted the consideration of the note, because that sale was made to one of the detendants only.

"If recoupment were allowed on the same principle of a set-off merely, this objection would be insurmountable. A set-off is in the nature of a cross-action to the full extent; it does not deny the validity of any part of the plaintiff's claim or cause of action, but sets up a separate and independent claim against the plaintiff; and the defendant is entitled to judgment upon any surplus of his claims beyond those of the plaintiff.

"A defense by way of recoupment denies the validity of the plaintiff's cause of action to so large an amount as he claims. It is not an independent cross-claim, like a separate and distinct debt or item of account due from the plaintiff, but is confined to matters arising out of or connected with the contract or transaction which forms the basis of the plaintiff's action. It goes only in abatement or reduction of the plaintiff's claim, and can be used as a substitute for a cross-action only to the extent of the plaintiff's demand. No judgment can be obtained by the defendant for any balance in his favor. See Ward v. Fellers, 3 Mich. 282, where the distinctions between these two classes of defenses are very fully discussed.

"It is not denied that the defense, by way of recoupment, would have been available to the defendant who purchased the cattle, if the note had been given by, and the suit brought against, him alone.

"Now the only consideration given for the note was received by Findley McHardy. Donald McHardy, though a joint maker in form, would seem to have been, as between himself and the other defendant, but a surety; and it is difficult to discover any good reason why he should not be entitled to any defense, connected with the consideration, which would be available to the real principal in the transaction had he made the note and been sued alone. If the consideration paid to the former inures to bind the latter, can there by any good reason why a want or failure of that consideration should not inure to his benefit? We can discover no more reason why the defense, in the present case, should not inure to the benefit of both defendants, than if it had been a defense by way of payment, want or failure of consideration for the note, or fraud in the sale for which the note was given. It prevents circuity of action, and accomplishes full

Moreover, the want of mutuality which is held to prevent the use as a set-off or counterclaim of a demand in favor of one of a number of defendants does not appear to have been recognized with respect to common-law recoupment. That remedy was available only as a defense, no judgment being allowed for any surplus, either in the action in which it was used defensively (25 A. & E. Encyc. of L. 549; 34 Cyc. 642), or in a separate later proceeding (Bouvier's Law Dictionary, title "Recoupment"). "It seems that, in the absence of any statute requiring it, a claim to recoup need not exist solely in favor of the defendant and against the plaintiff in the ac"If, instead of setting this up in defense, a tion, since it goes merely to the abatement cross-action had been brought, such cross-acof the plaintiff's recovery, and does not call tion probably could not have been maintained by for a judgment for any balance against him." | the two defendants jointly. But we cannot see

justice to all the parties without the violation of any rule of law.

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