73 Mo. 115 | Mo. | 1880
This is a proceeding in equity, by which plaintiffs seek to charge certain lands owned by defendant with the sum of $500, the proceeds of a tract of land sold by Jno. E. Cates, as administrator of the estate of Matilda Cates, which plaintiff's allege was conveyed by the father and mother of Nancy Green to said Matilda Cates in order to place it beyond the control of her father, the land having been purchased with money received by her mother from her father’s estate, and Matilda Cates having paid nothing for the land. The land sought to be charged is not the land conveyed as above stated, but other lands owned by the defendant, Delilah Cates. The petition al
Without going into the details of the testimony, the facts established by the evidence are about as follows: James D. Selvidge, the father of Nancy Green, purchased a land warrant of Thomas Eellows for $100, for which he executed his note, and with it entered the west half of northeast quarter of section 85, township 24, range 28, in Barry county. The certificate of purchase was assigned by him to Eellows, who gave Selvidge his obligation to convey the land to him on payment of said note. Subsequently, on the eve of his departure with his wife to the state of Tennessee, Selvidge transferred to one Bowman all his right and interest in the land, and Bowman paid Eellows Selvidge’s note, and Eellows made him a deed to the land. Selvidge and wife returned from Tennessee with some money received by Mrs. Selvidge from her father’s estate, with which they purchased the laud from Bowman, who resided in Christian county, and executed a deed to Mrs. Selvidge, intending to convey said tract, but by a mistake of the scrivener, it was misdescribed, and in ignorance of the law, was acknowledged before a justice of the peace for Christian county. A patent for the land from the United States was issued to said Selvidge in 1863.
In 1860, said Selvidge and wife executed a deed conveying the land entered by Selvidge to his mother, Matilda Cates, who paid no money, or other consideration for the
As to the other branch of the case, the evidence establishes the following facts: That John E. Cates was considerably involved in debt, and owned several tracts of land, and in order to hinder and delay his creditors, conveyed them to his mother, Matilda Cates, in June, 1861, expressing in the deed a consideration of $125, but no money was in fact paid, or to be paid. Matilda Cates executed her noteyto Jno. E. Cates for $500; at all events the probate court allowed him that sum against her estate, after her death, and whether it was originally for $5 or $500, is not to be tried in this ease. 'The fraud alleged in procuring that allowance, we may say, was not proved.
In 1867, Jno. E. Cates administered on his mother’s estate, arid after obtaining the allowance in his favor, procured an order from the probate court of Barry county to sell lands of her estate to pay debts, his being the only debt. The regularity of the proceedings to procure the order of sale is not questioned, and under that order the Selvidge land was sold to one Pierce for $500, and the lands which had been conveyed by Jno. E. to his mother, were nominally sold to one Dilworth, who really purchased for John E. Cates, and afterward, by his direction, conveyed the land to Delilah Cates. Jno. E. and Delilah both knew all about the transaction between Selvidge and wife and Matilda Cates, and that the latter paid nothing for the land. Ou these facts the circuit court made a decree vesting the Cates tract of land in the respondent, Nancy Greeri.
Declarations of trust in land can only be manifested and proved by some writing signed by the party who is enabled to declare such trust. Wag. Stat., _ ° 7 § 3? p. 655. The deed from Selvidge and
wife to Matilda Cates was an absolute deed, and no trust
There was no resulting trust in their favor. There was an express trust, void because not in writing, and the deed was made in fraud of Selvidge’s creditors, whether the intent was to hinder, delay or defraud them, or being in debt, to secure the property to Mrs. Selvidge. “A husband cannot, to the prejudice of his creditors, settle on his wife, without a valuable consideration, property that may have come to him by means of the marriage.” Potter v. McDowell, 31 Mo. 70.
But if the sum of $500 received by John E. Cates for the Selvidge tract of land could be regarded as a trust fund, there was a total failure to show its in- ’ vestment by Cates in the land decreed to Nancy Green. On the contrary, not a dollar was paid by Cates for that land, but he simply credited his judgment against the estate of Matilda Cates with the amount of Dilworth’s bid for the land.
This is a hard case. The defendant has acted any other than the part of an uncle to an orphan niece, but ■there is not enough flexibility either in the principles of law or equity to warrant a court in giving the relief asked by plaintiff upon the facts proved. We feel constrained to reverse the judgment.
