Zier v. Osten

Submitted April 22, 1959. PLEADING — TRUSTS — VENDOR PURCHASER — APPEAL AND ERROR. 1. Pleading — Test on motion for judgment on pleadings. The test of whether motion for judgment on the pleadings is well taken is whether undisputed facts warrant such a judgment, and the denial of immaterial matters does not alter the rule. 2. Trusts — Presumption of trust. When a transfer of realty is made to one person, and consideration is paid by another, a trust is presumed to arise in favor of the person making the payment. 3. Trusts — Bona fide purchaser. Trust property cannot be followed and be impressed with a trust against one who is a bona fide purchaser for value without notice. 4. Trusts — Trust did not arise. Even though plaintiffs paid consideration for deed of realty to deceased prior to antenuptial contract between deceased and defendant, trust did not arise in favor of plaintiffs as against defendant if she had no notice or knowledge of deed at time she entered into antenuptial contract under which she claimed an interest in the realty. 5. Vendor and Purchaser — Burden of proof. One claiming under an unrecorded instrument has burden of showing that subsequent purchaser purchased with notice of the unrecorded instrument. 6. Pleading — Failure to allege actual notice, judgment warranted. Where, in action seeking adjudication that plaintiffs were owners of realty, undisputed facts alleged showed that on December 16, 1953, date when antenuptial agreement between deceased and his defendant widow was made, legal title to the realty stood in the name of the deceased, and that antenuptial agreement was recorded prior to March 25, 1954, date of recordation of deed by deceased transferring realty to plaintiffs for consideration, and plaintiffs failed to allege actual notice on part of defendant widow of their interest in the realty at the time of the making of the antenuptial agreement, judgment in favor of defendant widow and defendant administrator on the pleadings was warranted. 7. Appeal and Error — Opportunity to amend given. Where plaintiffs failed to allege actual notice on part of defendant widow of alleged interest of plaintiffs in realty at time of making antenuptial agreement by widow and deceased prior to recording by plaintiffs of deed to them by deceased, so that judgment for the defendants on the pleadings was warranted, but defendants should not have made a motion for judgment on the pleadings on the day of the trial and should have raised the question presented by demurrer to the reply, so that plaintiffs would have had an opportunity to amend the reply if they were able to allege and prove that defendant widow had actual notice of their interest at time of making the antenuptial agreement, Supreme Court on appeal, instead of affirming judgment for defendants on the pleadings, would, in the interest of justice, give plaintiffs opportunity to amend reply within time to be fixed by trial court if they should care to do so, and in case of failure of plaintiffs to do so, judgment would stand affirmed.