Garten v. Trobridge

Citations

• 80 Kan. 720
• 104 P. 1067
• 1909 Kan. LEXIS 151

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Petition—Insufficient Facts. Where any fact or facts essential to be established by evidence to sustain an acción are entirely omitted from the petition a general demurrer co such petition should be sustained, and the overruling of such demurrer is error.</p> <p>2. - Error Cured by Trial of Issue Not Pleaded. When after the overruling of such demurrer the defendant answers, although his answer in no way cures the defect in the petition, and upon the trial both parties treat the omitted facts as in issue and. introduce evidence pro and con thereon, and the issue is determined by the judgment of the trial court, the error will not' be regarded here as prejudicial nor will the judgment be reversed by reason thereof.</p> <p>3. Conveyances — Resulting Trust. The finding and judgment awarding to the plaintiff the land in controversy and decreeing in effect that the defendants inherited from their deceased father only the bare legal title thereto, which he held as a resulting trust for the plaintiff, to whom passed the equitable title, is supported by the evidence and is in accord with the statute of trusts and powers. (Gen. Stat. 1901, §§ 7875-7893.)</p>