Adams v. Burns

96 Mo. 361 | Mo. | 1888

Black, J.

Sojne of the,-plain tiffs- are the; brothers and sisters, .and .others- are the heirs' of deceased brothers and sister^,of, John -King., ! The substantial- allegations of the petition are: That John King owned the eighty . acres qf land in suit.; that prior to 1860, he-was indebted to Jphn W- Bryant in the sum .of-four hundred-dollars ; that he conyeyed, the Jand. to. Bryant by a deed which .was unconditional ,on .its face, but in fact made to secure tlte.said deb,t 5 .¡that in 186-1, John.King rented; the -land tq.the defendant,-for four, .years, -and .the • -defendant agreed to pay the rent to Bryant in discharge of the , debt .owing by King to Bryant, and defendant'went into possession of the land as such, tenant.; that- defendant paid the rents to Bryant and took a deed to himself. King is dead, and the claim is that there is a resulting trust in favor of the plaintiffs ; and the prayer is, that defendant be divesfed,ofdhe-title, .-. .- ,

The evidence shows that Bryant loaned .King one • hundred dollars,‘¡and perhaps .something in! addition, in 1855,. to be'used in entering the- land, it would seem. King failed to pay the debt, and in 1858 conveyed the land to Bryant, who sold it-to Burns in November, 1862, for $612.10.- In April,-1866, Bryant mádé a deed to Burns, pursuant to a title bond inade at the date of the sale.. - -The' défendant Burns was thé step-'fáthér of King, and leased the land from.- King for the years 1860 and 1861, but did not move on the land until after the death of King. King died in March, 1862. . .

The evidbn'ce offered to establish the trust is as follows: ■■■•'.' ■> ■ ■ • - -

. - John W. Bryant:. “ King was not able- to pay me and he made me a deed. I told him, if ■ he paid me the money, he could have the land.' He did not come and I sold to Burns. The deed was not intended to be a mortgage. -'I sold'the land to Burns ' without reference to the debt of King. Don’t-know whether Burns knew the'fact about the King debt to me or not.”

Wilburn Zans : “I wás balled on by King and Burns to witness a contract. King said he had leased the land to Burns for four 'years from 1861, and that for,the rent Burns'was to pay the Bryant debt, about four - hundred dollars.1 Both men told me that in’the latter part of I860.-' Burns their’had the land under contract, which expired in 1861.” “ '

Mrs. Zans: "u Burns' told nie. he' and my brother John King were going to make a contract by which Burns was to pay the ‘Bryant debt ‘ for four years rent. I cannot state the contract'; was ,not called upon to witness it'; my husband was present.”

■ - • Wm:' Akeh: “I think I heard Burns say, that when he first went on the land he leased it from King, that he found -out King' did not own it and he bought it of Bryant.’-’ ..

There:is some'other evidence, but.it is not of.any value onr the rekl '' question in . this case. The trust in this case, if any there is, arises out of a contract between King and' Btirns,' by which the latter agreed to pay off •the Bryant debt for the use of the land for four years ; and the question''is whether such a contract hps .been sufficiently'-established’' ’ These resulting trusts must not be declared upon doubtful evidence, or even upon a • mere preponderance of évidence. There shpuld.be no room for a reasonable doubt as to the facts relied upon to establish the trust. This is the rule declared in the case of Johnson v. Quarles, 46 Mo. 424, and it has been again and again approved in subsequent cases.

That filié deed from King to Bryant might have been declared a mortgage, .by .timely , proceedings,, may-be 'taken as .established. . Th,e. evidence.- of-Zans- as to the .terms of the alleged contract- between King and Burns finds some support in the fact that Burns was then the tenant of King. He says, too, that he was called upon to witness the contract. On the other hand, Zans and his wife are interested parties to this suit, and Burns, by reason of the death of King, is an incompetent witness as to matters relating to the alleged contract. The evidence of Bryant shows that he sold the land to Burns without any reference to the promise he had made to King. The amount paid by Burns for the land is much in excess of the amount mentioned, which, it is said, he was to pay by way of rents for the land. The agreement, it is true, is stated in such a form as to give it flexibility enough to cover the amount actually paid ; but such a method of renting lands is very unusual. From the date of the deed to Burns to the commencement of this suit, a period of eighteen years, he has been in the actual possession of the land, accounting to no one for. the use thereof, and Mrs. Zans says she knew he claimed full title thereto; yet during all this time the plaintiffs set up no claim to the land. This continued assertion of title on the part of Burns, and non-action on the part of plaintiffs, isa very effectual denial of the existence of any such contract as is now sought to be established. Proof of the alleged contract rests alone on reported conversations, and the contract is not established, as it should be, according to the rule before stated.

The judgment is affirmed.

Rat, J., absent; the other judges concur.