16 Mo. App. 22 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This case was before the court on a former appeal (Bangert v. Bangert, 13 Mo. App. 144), and we are therefore relieved of the necessity of restating the facts at length. The petition contains two counts. In the first, the original plaintiff, John Bangert, in the character of a judgment creditor of Henry Bangert, and of purchaser at an execution sale under his judgment against Henry Bangert, of the right,, title, and interest of Henry Bangert in certain described real estate, seeks to set aside certain alleged fraudulent
I. The first question raised upon this record relate to the right of these plaintiffs to maintain their action At the last hearing in the circuit court, it appeared that” the original plaintiff, John Bangert, had, on the 30th day of March, 1880, which was after the institution of this suit, conveyed all the interest he had acquired in the premises in controversy, by a deed of special warranty, to the present plaintiffs, for the consideration of six hundred dollars ; that thereafter, on the 10th day of April, 1880, he had also assigned to the present plaintiffs the judgment upon which the execution under which the sheriff’s sale to him had taken place, had been issued. It is now contended by the appellants that these substituted plaintiffs have no standing in a court of equity, because they are the purchasers of a bare right to complain of a fraud, which is not an assignable commodity. We have had this question before us in two recent cases, Jones v. Babcock (15 Mo. App. 149), and Lionberger v. Baker (14 Mo. App. 353). In the former case, we held that where the record title to land had been entirely divested out of a party by his conveyance of the laud in trust, and by a trustee’s sale and deed thereunder, such party could not thereafter, by giving a deed of warranty to a third person, pass to him such interest in the land as would enable him to maintain a suit in
II. It was alleged and proved, that about two months before the recovery of the judgment by John Bangert against Henry Bangert, the latter transferred the land in controversy to the defendant, Benne, by deed of warranty, and that Benne thereafter, by a like deed, transferred it to the defendant Blum as trustee for the defendant Charlotte Bangert, who was then the wife of Henry Bangert. It also appeared that no consideration passed to Hen ry Bangert for these transfers. Benne, the intermediary, did not know why he had taken and given the deed; he simply knew that he had paid no money; he stood before the court in the attitude of a mere dummy, in a transaction where a man, knowing that judgment was about to be recovered against him, evidently thought it necessary to resort to this circuity in order to give the transaction the appearance of honesty. It is not claimed by these defendants that these conveyances were founded upon any consideration passing between the parties to them at the time;
When we remanded this cause on the former appeal, we suggested, that in order that there might be a settlement of the rights of all the parties, the children of Henry Tieman, deceased, whose money, according to the foregoing answer, was in part used to purchase the land, ought to be made parties to the suit. This, however, was not done. The circuit court seemed to think that, somehow or other, the plaintiffs were under obligations to have it done; for, after the cause had been heard and taken under advisement, according to the recitals of the bill of exceptions, “ the court announced to the parties that it was unable to arrive at a satisfactory conclusion in the case, on account of insufficiency and vagueness of the testimony as to the rights of the parties in the property, and on account of defect of parties. Whereupon the plaintiffs asked leave, and moved the court to allow them to amend their petition, and make the children of Charlotte Bangert by her former husband, Tieman, parties, and to set down the cause for further hearing on the amended petition ; which request and motion of the plaintiffs were by the court denied, to which action of the court the plaintiffs then aud there excepted. Whereupon, on the-day of November, 1883, the court rendered a decree dismissing the bill.” We can not account for this ruling upon any other theory than that the court must have been of opinion that the plaintiffs were under an obligation to make these minor children parties to the suit; that not having done this before going to the hearing, they were not entitled to do it after the cause had been submitted; and that because they had not done so their suit must be dismissed. This view was entirely erroneous. The plaintiffs were under no obligation to make the minor children parties. They sought no relief against them. The claim that the minor children had an interest in the land
Under these circumstances, the fact that the children were not made parties we regard as a strong circumstance against the special defence set up in the amended answer. For this ruling alone it would be our duty to reverse the judgment and remand the cause; but- as the case has been heard a second time in the circuit court with no better result, so far as the rights of the parties are concerned, than before, we think it our duty to take the evidence and deal with it as •chancellors, and end the controversy by a decree in this court.
ni. It is perceived that the first count of the petition, to the issue made upon which the proof is directed, is in the nature of a bill in equity to set aside an alleged fraudulent conveyance made by a husband, through a third party, to a trustee to hold the title for his wife. It is also perceived that the defence is that this land was originally purchased by the husband with money belonging to the wife and with other money belonging to the four minor children of the
The issue thus tendered is thus seen to have been whether the defendant Henry Bangert held the land in controversy as trustee of a resulting trust in favor of his wife and her children, and whether he made the conveyance for the purpose of declaring and executing such trust.
In order to establish a resulting trust by parol evidence the evidence must be of the most cogent and undoubted character, such as to satisfy the mind of the chancellor beyond a reasonable doubt. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73. If this rule were not rigidly adhered to, there would be no security for land titles ; for in every case of this kind the establishment of a resulting trust means the establishment of title contrary to what has been written, signed, sealed, and recorded in a deed. But whilst this stringent rule is to be upheld in every suit in equity where it is sought by parol evidence to establish such a trust contrary to the terms of a title deed, yet we are not aware that it has been declared necessary in a case like the present, where the trust, if it existed, is claimed to have been executed by the trustee, and where the deed or deeds by which he claims to have executed it are assailed as fraudulent conveyances by his creditors. But even in these cases-the rule is no doubt strong: for, as was said by McGirk, C. J.: “ Secret trusts and powers are not favored by the
Turning to the facts of this case, it will appear that it is necessary, in order to support the special defence set up in the answer, to adopt one of two theories : (1.) That the conveyances which are assailed were made by the defendant Henry Bangert, to declare and establish a resulting trust in favor of his wife Charlotte Bangert and her four children, with whose money this land had been purchased; or (2) that, having used the money of the wife and children in purchasing the land for himself, and being indebted to them therefor, he made the conveyance for the purpose of preferring them as creditors.
1. We do not think that the first of these claims has been made out by that satisfactory evidence which the rule above stated requires. It can not escape attention at the outset, that, so far as the defendant Henry Bangert is concerned, the defence which he has set up involves the confession of a breach of trust on his part, as curator of the estates of the four minor children of his wife. Whether he could, without the sanction of the probate court, invest their money in land at all, need not be considered. That he could not lay hold of it en masse, miugle it together, mix it with money belonging to his wife, buy a farm with the aggregate sum, and take title in his own name without a recorded declaration of trust in favor of those who furnished the purchase-money is a question which can not be debated. Neither can it escape attention that the deed by
If we give full effect to this testimony, it will appear that, of the $5,650, which appears to havé been the purchase-price of the Frenz farm, $2,650 were given by Mrs. Bangert to Henry Bangert, out of moneys which she had kept in the house, the same being accumulations of sales of produce of the Columbia bottom farm, on which her former
The general rule is that possession of personal property is prima facie evidence of its ownership; but this rule seems to have no just application where the question of ownership arises between husband and wife, because the possession of their personal property is necessarily in a large measure a joint possession. The general rule must be held to be, that whether the possession be physically in the husband, or in the wife, the title is presumptively in the husband.
The act of 1875 (Rev. Stats., sect. 3296), does not seem to have changed this rule in its application to such a case as that before us. Of course the rule must, since the passage of this act, give way in many cases to special circumstances which may attend the possession.
If a wife were carrying on business in her own name as a feme sole trader, — her name on a sign above her place of business, her money deposited in bank in her own name, and in her own name checked out by her, — these circum
This, we think, would be so, even under the act of 1875. But it seems that Henry Bangert intermarried with the widow Tieman in 1873, and therefore the question is to be decided with reference to the law as it then stood. The law as it then stood has been expounded in two cases in our supreme court. These decisions, overruling the contrary dictum in Tennison v. Tennison (46 Mo. 77), hold, in the language of Adams, J., as follows : “ The husband, by marriage, acquires an absolute right to all the personal property in possession belonging to his wife, and that all subsequent acquisitions by his wife of dioses in possession, vest absolutely in him unless such acquisitions be given or transferred to her or to him for her sole and separate use. Where a husband, by means of the marriage, acquires the absolute right to personal property in possession, he can not be declared a trustee for his wife by loose and general remarks made in conversations. To establish such a trust against the husband, the authorities are united that the evidence must be clear and unequivocal.” Woodford v. Stephens, 51 Mo. 443, 447; Kidwell v. Kirkpatrick, 70 Mo. 214.
In an earlier case, where the same question was under consideration, it was said by Scott, J.: “Nothing is clearer at law than that the wife can not be the recipient of a gift from the husband so as to vest in her a legal title to the subject-matter of the gift. Their unity prevents it. The personal property of the wife at law belonging to the husband, so soon as a gift is made to the wife, the
In another part of the same opinion the learned judge uses the following language: “In contemplation of law, property is reduced into possession when it is in such a state that the husband can lawfully take it into his hands if he will. It is not necessar}'- that he should have actually taken it into his custody. If he has a right to do so at his will, it is enough. When no suit at law or equity is necessary to obtain possession of personal property, and the husband may, if he will, take actual possession of it, but fails or neglects to do so, the property is not the less reduced into his possession. The objection that the property was not r’educed into possession must rest either in the idea that it was in the possession of the wife, or that it was held by the husband as administrator. Both of these grounds are untenable. If the property was in the possession of the wife, then the possession of the wife was the possession of the husband.” Ibid. 376. Applying these principles
There is, therefore, no difficulty in saying that so far as the defence set up in the answer that $4,000 of the purchase-money of the Frenz farm belonged to the wife in her own right is concerned, the defence has not been made out.
Then, as to the case of the children, it is sufficient to say that they have not been made parties, and that the decree which will be entered will not prejudice them in the future assertion of any right which they may have in the premises. As we have observed, neither their mother nor their stepfather and curator has thought it right to bring them forward as parties. Caroline, who was of age, did not ask to be made a party. Henry Bangert, who of all others knew most about these transactions, delivered a mass of contradictory testimony upon the former hearing, but said not one word upon the present hearing. If he had come forward on the present hearing and testified as he did at the former hearing, he would have delivered testimony in direct conflict with his sworn statements made as administrator de honis non of Tieman’s estate, and as curator of these children ; for the evidence shows that he purchased the Frenz farm for cash on the 19th of March, 1876, and that, subsequent to that time, namely, on the 19th of January, and again on the 27th of March, 1877, he filed two settlements as such administrator, under oath, charging himself with the full amount of assets which had come into his hands, stating that the same consisted of cash; and that at divers subsequent periods,, he filed sworn settlements as curator of the four minor children, charging himself with the full
It is quite clear that this evidence is not of that satisfactory character which is required to establish a trust in land in favor of the wife of a debtor as against the rights of his creditors.
2. Whether this evidence is sufficient to uphold the conveyances sought to be set aside, as having been made to prefer certain creditors need not, perhaps, be considered, because this is not the claim made in the answer. Besides, we have seen that as to the wife there is no satisfactory evidence that she was a creditor; and we do not pass upon the rights of the children, they not being before the court.
It appears by the testimony of Mrs. Bangert that the annual rental value of the laud is $225. They are entitled to a judgment' against Henry Bangert and wife for mesne profits based upon the annual rental value from the date of the commencement of this suit.
A decree will be entered in this court accordingly. This decree will have no effect upon any rights which the minor children of Mrs. Bangert may have in respect of the land in controversy as they have not been made parties to the suit. It will, however, conclude the rights of Mrs. Bangert. It is ordered accordingly.