*1 Yol. 283] 1919. ’ plaintiffs property damages sustained,
value and the change grade on account of the and construction of contradictory, presents exceedingly said is viaduct, peculiar province jury, where it the case damages ascertain the sustained. Finding
Y. no error record of the defend- legally judgment. ants can we affirm the complain, Mosley, White and concur. CG., opinion foregoing
PER CURIAM:—The Railey, hereby adopted opinion C., is as the of the court. All judges concur. BENDER, EUGENE and WALTER BENDER and JOSEPH BENDER, Their Jr., Next Friend, Appellants, EUGENE BENDER, ESTELLE BENDER. Two,
Division March 1920. 1. RESULTING TRUST: Whence and How It Arises. A trust results purchase money in favor of a who furnishes the for estate, title is when taken the name of another. arises facts, agreement, regardless an of and not from hut spite agreement. sometimes in an presumption Presumption: Conveyance is 2. -.: Wife. grantee conveying hold that deed real estate intends to in a money. person paid who in trust for the presumption But that is where the husband oversome another pays purchase price grantee, and his wife is named as the conveyance presumption for is that he intended the prima-facie as a her. that for But operate he intended as settlement on rebuttable, but circumstances wife under consistent legal principles. Conveyance: Contingency: -: Coincident With Future Ex- 3. press arise, all, at Trust. A trust must the instant if at . The transaction must be that deed taken. such passes. arises the moment the title If the trust favor of contingent happening upon husband’s children is made future, legal an event divorce of the husband and the children do have conveyed paid real estate to him for husband (cid:127) and his wife. SUPREME COURT
Bender v. Bender. Agreement Express - — : Parol to Hold Trust: Allegations money real 'estate husband’s upon agreement it was to him her *2 legal separation divorce, and would or she case of trust, express grounded convey children, on an their three by parol. established which cannot be City Appeal William from Louis Circuit Court.—Hon. St. Judge.
T. Jones>- Affirmed. Taylor Young T.T. and McDonald, B. A. appellants.
Jesse Hind'e for “
(1) Resulting those arise trusts are operation parties by of law. The acts of the agreed to the trust charged may never have as trustee really yet acts may if his resist it, and have intended dealing honesty con- and fair are have been purpose trust, to hold sistent with a operation v. of law.” a trust will result Stevens Fitzpatrick, Ferguson Mo. Robinson, v. 258 Mo. 723; 218 Cyc. (2) of Frauds 118. Neither Statutes 129; 39 proof parol precludes nor our statutes Fitzpatrick, 708; resulting Mo. trust. 218 Stevens v. of Ferguson (3) 113. The v. Mo. existence Robinson, 258 resulting express agreement destroy not does Harrisqn, App. Mo. 416 Smith- ; trust. Shelton v. 182 (4) 169 409'. While Meech, Institution S. sonian v. U. gift presumption of an when there is a advancement purchases own and deeds tó with his funds husband yet not this is a mere of fact and may resulting parol to be a law, be shown Kane, Viers, v. Mo. trust. 112 v. 415; Price Viers 175' App. Christman, Mo. Mo. v. Smith- 453; Siebold 7 v. 410. Meech, sonian Institution 169 U. S. respondent. Olendy B. Arnold (1) holding plain- The did not err court ’ express petition R. 2868, tiffs counted on an trust. Sec. 475 281 1919. j Yol. Bender v. 638, court The (2) 145 Mo. Allen, Hillman
S. appel- hy excluding err evidence did Allen, trust. Hillman lants to a establish R, Mo. 688; S. Sec. a judgment is from appeal C . The WHITE, hill plaintiffs’ Circuit of St. Louis, dismissing Court trust. sought to establish whereby they mother oi was Bender, Estelle defendant, father. was their Bender, Sr., Joseph plaintiffs, At time' trial, plaintiff Eugene twenty, Bender was twenty-two age, years Wlalter thereafter Joseph Bender, Jr., seventeen. estate purchased pieces three Bender, Sr., Louis City of St. described *3 wife, caused to be made himself and his to Bender, Bender. the defendant, Estelle Estelle instituted suit for Joseph Bender, Sr., a against divorce in and them divorcing decree was rendered the- of the matrimony. trial, bonds At time of the the thjee Joseph children were Ben- living father, with Sr. der, and Bender, Sr., Joseph that out
The petition sets in owners apparent the were Bender, Estelle defendant alleg- then it, and describing simple property, fee es: acquir- the time of that at
“Plaintiffs further state same was the described real estate ing the foregoing Sr., Joseph Bender, and purchased the said acquired the title to the same but took funds, his own he Ben- himself the name of Estelle name out and the agreement and der with distinct understanding Bender that in the event there with the said Estelle Joseph the said any separation future between should be father mother of Bender, Bender and Estelle and said in- then and that the title these event and plaintiffs, Joseph and Bender in and to terest of defendant conveyed should be to all of said estate these plain- should thereafter tiffs that thereof and owners SUPREME COURT
Bender Joseph of the said whatever free from interest and Bender.” Estelle defendant, Sr., Bender, and alleges divorce petition that decree of then The Joseph Bender, and Bender rendered between Elstelle plaintiffs to entitled were Sr., reason whereof conveyed that property them; to described have the convey, ready Joseph Bender but Estelle Bender was convey. prayer title of that "to refused plaintiffs. and vested Estelle he divested Bender general denial. The answer is Joseph he testi- was sworn; trial Sr., On the Bender, acquisition relationship’ parties, fied to money1 purchase property, had and he The'plaintiffs then show his funds. out own part agreement up essential set of which offer was follow^: wife Estelle
“That at the solicitation of his earnest Bender) (Joseph Bender, here, the defendant consent- agreed joint him- ed name take title Joseph condition elf, Bender, Estelle, on wife, ' any contip- that in event that should there ever be ''versy between or should there ever be a them, them, that event that divorce between property be, himself, Estelle Bender and should Joseph Bender, to the three children plaintiffs Bender and this Bender, who .Estelle are the promised case; said Estelle agreed that if he would take naipe thé himself and as his her, *4 ’’ she would do that. plaintiffs by
This was evidence the court; excluded excepted. duly Thereupon hill dismissed. appellant by
I. It claimed that a resulted in trust purchase by property their favor under the alleged in the circumstances of which Resulting proof stated. as results favor of a who trust furnishes A money purchase estate, for real when the title is another. In case, name of this if taken 281] 477 Yol.
Bender v. Bender. strangers to been Bender had Bender, Sr., and Estelle pur- paid the other that he had each it were shown money two, names chase taken the title nothing' in his appearing, result trust would further in the Elstelle. favor for the half interest held name might anything transaction It if there were be, gift that a children, to to his intended it show he although it unneces- favor, trust would result proposition sary to determine that here.
A trust arises not from facts, from spite agreement, regardless hut of and sometimes agreement. presumed It is that the holder person intends hold it in for the who trust purchase money. owing to the however, case, relationship’ presumption parties, is over presumption. pur come another a husband When chases funds his own and causes pre prima-facie same to be wife, his it is intended the sumed as a [Viers Viers, a trust will result. v. 453; Mo. l. c. l.Mo. c. And Brown, 92.] Curd v. where the such case is title in taken the name of entirety both husband wife an estate occurs. Ardrey, [Moss 260 Mo. l. 604.] c. was an intended settlement on his necessary inquire is rebuttable it
wife becomes premsumption may under what circumstances the re butted.
II. A
trust must
if at
arise,
all,, at the
instant
is taken.
deed
Unless
transaction is
the'
passes
that the moment
results
the title
transaction
re-
itself,
no
subsequent
sll^s.
be'
cannot
created
With^Deed
Perry
occurrences. 1
on Trusts,
sec.
Barrett v.
Haynes,
Foote, 187
S. W.
Stevenson v.
Kelly
O’Bannon v. upon contingent but it was made, happening future, of an event —the Express parents. of operation by from the-facts of results law A agree operation and never transaction parties from what do—not what ment; parol agreement agree providing con for a If a to do. express veyance becomes an resorted it at once to, is established trust, and cannot Thomson, by parol. Thomson v. [Sec. 2868, R. S. l. Heil, 665, l. c. Heil v. 184 Mo. 52, 56 ; W. 211 S. c. Perry c. on Kane, ; Trusts, Price l. 419 1 Mo., sec. 134.] payment by were the acts here shown purchase money con- Bender, Sr., of
veyance of the to himself and wife. No further presented ordinary is act fact which would rebut the upon that he intended it as a settlement sought prove express agree- wife. it is What an part prop- convey ment on himself and wife to erty upon happening contingency, separa- tion of two. Under last the authorities cited testimony. parol could not be shown at- was an tempt express to establish trust and not a trust.
The-judgment Bailey Mosley, is affirmed. GG., concur. opinion White, foregoing1
PER CURIAM:'—The adopted opinion as the C., All court. judges concur.
R. H. A. Appellants. O ’BANNON v. A. et WYDICK al., Two,
Division March Mechano-Therapist: PROFESSIONAL SERVICES: No License. A mechano-therapist, having practice, no license to cannot recover practitioner drugless healing” for his services as “a