New v. Smith

Citations

• 86 Kan. 1
• 119 P. 380
• 1911 Kan. LEXIS 168

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Form of Action — Setting Aside Deed — Fraud. An action to recover the possession of a tract of land, the real gravamen of which is to set aside a recorded deed which purports to have been executed by the plaintiff, for the reason that such deed was fraudulently obtained by the grantee, is in form an action in ejectment but in substance is an action for relief on the ground of fraud. '</p> <p>2. Evidence. The evidence requisite to sustain such action is the same as would be required if the facts of the transaction were pleaded instead of. the conclusion authorized by the statute in actions of ejeetment.</p> <p>3. Limitation of Actions — Fraud. The limitation of time within which such action may be brought is two years after the discovery of the fraud as provided by section 17 of the code, subject to being tolled as in other cases, and not the fifteen years as provided in section 15 of the code.</p> <p>4. Petition — Demurrer—Grounds—Presumptions. Where in an action brought by several plaintiffs whose petition alleged several grounds-of relief, the defendant demurs to the petition on the ground of misjoinder of causes of action and other grounds, the district court sustains the demurrer without specifying the ground upon which it is sustained, and an appeal is taken to the supreme court from such order and the ruling thereon is sustained on the ground of mis-joinder of causes of action, it will be presumed that the district court decided the demurrer upon the same ground.</p> <p>5. -Demurrer — Void Judgment. If in such case,, after sustaining the demurrer and without other pleading, the court enters a judgment in favor of the defendant that he is the owner and entitled to the possession of the property in question, the judgment is based on no allegation of fact in any pleading in the case and is void; it is coram non judice.</p> <p>6. Failure — “Other tham, on Merits.” The plaintiff, having commenced such action in due time, failed t