Nicholson v. Nicholson

Citations

• 94 Kan. 153
• 146 P. 340
• 1915 Kan. LEXIS 61

Syllabus

<p>SYLLABUS BY THE' COURT.</p> <p>1. Money Paid by Mistake — Action Barred by Statute of Limitations. Where money was paid in 1898 under a mistake and that mistake was discovered in December, 1903, an action for its recovery filed in August, 1907, was barred by the statute of limitations.</p> <p>2. Trust Funds — Action to Recover Barred by Statute of Limitations. Where the proceeds of an estate of an Ohio woman who died in 1860, have been permitted by the heirs to remain unadministered in their mother’s hands for thirty-eight years, and the only full' brother of the deceased woman persuaded the mother that he was entitled to the entire estate and received from his mother the sum of $1200 thereon in</p> <p>' 1898, and the mother and his half brother and sisters demanded a return thereof in 1903, on the theory that the money was trust funds in the mother’s hands, and that trust was denied by the brother who received the money, a suit to impress the money in his hands as a trust, filed as an amended petition in 1911 to an action originally begun in 1907 to recover the money as paid by mistake, when the trust had been disavowed in 1903 and all interested parties had notice thereof, such suit was barred by the statute of limitations.</p> <p>3. Trust Fund — Accounting—Action Bwrred by Statute of Limitations. Where a new petition filed on July 26, 1911, recites that money was paid by mistake or fraud in 1898, and that an action to recover it had been begun in August, 1907, and the original petition had been amended to plead a trust character of the money so paid, and that such action or suit was dismissed on July 26, 1911, and such new petition filed that day sets up the earlier steps in the litigation and seeks to have the money so paid impressed with a trust and to have an accounting thereof, held, that when it is shown by the pleadings and the evidence that the recipient never acknowledged the trust character of the money, denied its trust character, and refused its ret