Moore v. Moore

150 P. 232, 96 Kan. 95, 1915 Kan. LEXIS 318

Opinion

The opinion of the court was delivered by

West, J.:

This appeal involves the correctness of the trial court’s ruling in sustaining a demurrer to the plaintiff’s evidence. It was said in the former opinion (Moore v. Moore, 93 Kan. 697, 150 Pac. 230), that as there was some evidence fairly tending to establish a right to relief, the case should have been decided upon the preponderance of the entire evidence, and that the effect of depositing the deed was largely one of intention. With this result and the law as expressed in the former syllabus we are content.

Owing to a mistake in the abstract reference was made to a certain deed which was not in evidence. Allusion to a later will than the one involved was mistakenly made and should be considered withdrawn. The matter of verification of the answer was unimportant and there was an inaccuracy in assuming that Fielder E. Moore used any specific language in delivering the deed to the banker.

From the remarks of- the trial court in passing upon the ' demurrer it would seem that it was deemed a question of setting aside the deed entirely regardless of terms or conditions to be imposed, and that it was felt that the plaintiff’s evidence would not justify so doing. As the cause is to be retried it is proper to say that when the evidence is all in such decree should be rendered as the facts in equity and good conscience demand.

Further comment on the matters in controversy would not be advisable at this time.

The opinion being deemed corrected as indicated, the former decision is adhered to.