
    Roseltha Parsons v. Anson Parsons et al.
    
    Demuebeb to Evidencie, Error in Sustaining. It is error for a trial court to sustain a demurrer to the plaintiff’s evidence, when such evidence establishes a clear prima facie case in her favor. {Mo. Pac. Bly. Go. v. Goodrich, 38 Kas. 224; Gardner v. King, 37 id. 671.)
    
      Error from Morris District Court.
    
    The opinion states the case.
    J. K. Owens, and John T. Bradley, for plaintiff in error.
    
      Malay & Kelley, and Miller & Ritchie, for defendant in error Cyrus Parsons.
   Opinion by

StrANG, C.:

In March, 1886, the plaintiff Roseltha A. Parsons, was the owner in fee of the real estate described in her petition filed in the district coart. The defendant Cyrus Parsons represented to her that his brother, who, he said, was a rich man in Pennsylvania, would purchase the said property of the plaintiff, and pay her $4,000 therefor. The plaintiff consented to sell for that amount. Afterward, said Cyrus Parsons exhibited to the plaintiff a note executed by the defendant, Anson Parsons, payable to the plaintiff on demand, for $4,000, but said he was instructed to hold the note until the deed was executed. The plaintiff then executed a deed to said Anson Parsons for the property; had it recorded and sent to him. Cyrus Parsons then refused to turn the note over to the plaintiff until she paid a certain obligation signed by himself, with Fay Parsons, the husband of the plaintiff. The plaintiff then demanded the note, or that the property bé deeded back to her. This demand was made on both of the defendants, and they refused to do either. Fay Parsons, as the agent of the plaintiff, for her, made the same demand, which was refused. December 8,1887, the plaintiff commenced her action to set aside the deed thus obtained from her, upon the ground that it was secui'ed through fraud. April 24, 1888, the ease was tried by the court, a jury having been waived. Anson Parsons was in default. The court found that due and proper services by publication had been had on him. The plaintiff introduced her evidence and rested. The defendant demurred to the evidence, and the demurrer was sustained. Motion for new trial was overruled, and case brought here for review.

We fail to discover in the record any reason in law, or in fact, for the action of the district court. The plaintiff alleges that the deed from herself to Anson Parsons was obtained from her fraudulently. We think her evidence establishes a clear prima facie case, and, unexplained, is sufficient to support her right to the relief sought. The evidence shows that Anson Parsons, instead of deeding the property back to the plaintiff from whom his deed came, deeded it to Fay Parsons, notwithstanding both the plaintiff, and Fay Parsons for her, demanded that it be deeded back to the plaintiff. This action of Anson Parsons, together with the stealthy manner in which it was accomplished, with the other evidence in the case, shows pretty conclusively that the transaction was a scheme on the 'part of Cyrus Parsons, to which Anson Parsons lent himself for Cyrus’ benefit, to get the title out of the plaintiff, and in the name of Fay Parsons, so that a judgment against him and Cyrus could be collected out of the property. The law never uses fraud as a means for the collection of a debt. The demurrer to the evidence should have been overruled. (Mo. Pac. Rly. Co. v. Goodrich, 38 Kas. 224; Gardner v. King, 37 id. 671.)

It is recommended that the judgment of the district court be reversed, and the case remanded for new trial.

By the Court: It is so ordered.

All the Justices concurring.  