Haguewood v. Britain

273 Mo. 89 | Mo. | 1917

BLAIR, J.

Cordelia Britain died in 1912. Appellants are her hefts at law, and respondent is her surviving husband. In October, 1910, she purchased and paid for a residence and caused the deed to be made to herself and respondent. The deed, on its face, creates an estate by the entireties. Appellants brought this suit to have a trust declared and for partition. Having-lost in the trial court, they bring the case here. Other facts necessary to a decision are stated in connection with the discussion of questions to which they are pertinent.

intent of Purchaser, I. The doctrine that a resulting trust arises “from the payment of price by one person and the taking title in the name of another finds its sanction in the theory, which courts of equity adopt, that such a trust probably expresses the intention of the parties to the transaction. But equity neither creates nor enforces such a trust contrary to the ascertained intent of parties capable of acting for themselves.” [Morris v. Clare, 132 Mo. l. c. 236; Morford v. Stephens, 178 S. W. 441.] In the circumstances, Mrs. Britain could have taken title in her own name and then, under the statute (R. S. 1909, sec. 8304 et seq.) as construed in numerous decisions (Farmers’ Bank v. Hageluken, 165 Mo. 443; Myers v. Hansbrough, 202 Mo. 495; Kirkpatrick v. Pease, 202 Mo. 471; Clay v. Mayer, 183 Mo. 150; Evans v. Morris, 234 Mo. l. c. 186; Turner v. Shaw, 96 Mo. l. c. 28), lawfully could have conveyed to her husband without the intervention of a third party. [Glascock v. Glascock, 217 Mo. l. c. 378, 379; Wilson v. McDaniel, 190 S. W. 3.] She was entirely “capable of acting for herself” in the premises, and her intent becomes important. The trial court found that Mrs. Britain closed the negotiations for the property; consulted lawyers as to the best method of securing her husband in the enjoyment of the property in case of her own death; deliberately, after the matter was explained, chose to have the property conveyed ae she did in preference to taking the whole title and providing for her husband by will; then paid her money and accepted the deed in the form in which she had had her own attorney prepare it. The court’s finding on these matters is fully supported by the record. These facts not only fail to warrant a presumption of a trust, but they conclusively exclude any possibility that such thought was in the mind of any of the parties. Some courts hold that in eases in which the wife pays the consideration and title is taken in the husband’s name, a gift is presumed; all hold if a gift is intended, and shown by evidence competent and sufficient, no trust arises. It is generally held that, if the wife pays the price and the title is taken in the name of both husband and wife, the law infers an intent of the wife to confer an interest by the entireties upon the husband and no trust will arise in the absence of proof that one was intended. These principles are stated in 13 R. C. L., sec. 440. In Reed v. Reed, 109 Md. 690, 130 Am. St. 552, and Lux v. Hoff, 47 Ill. 425, it is held that if a purchase by the wife or by the husband and wife is made with the wife’s money and title taken in them jointly, no trust arises in the absence of evidence of an intent to create one. Mr. Bishop (2 Bishop on Married Women, secs. 118-125) approves the doctrine that in such cases there is a rebuttable presumption of an advancement or provision; the whole matter being one of intent and there being no unbending rule. There are decisions which impose upon the husband the burden of showing an intent that a trust shall not arise from the wife’s purchase and the taking of title in the names of both. It is unnecessary to discuss the relative soundness of these somewhat variant views because, in this case, the evidence and the court’s findings satisfy the requirements of the rule most favorable.to appellants.

where Husband Money! 1 e S II. Appellants rely upon cases (Jones v. Elkins, 143 Mo. l. c. 651; McLeod v. Venable, 163 Mo. l. c. 544, 545; Hudson v. Wright, 204 Mo. l. c. 432; Donovan and Boyd v. Griffith, 215 Mo. l. c. 166 et seq.; Holman v. Holman, 183 S. W. 623) holding that if the husband, with or without the wife’s knowledge and consent, invests her money in realty and takes title, in whole or in part, in his own name, a trust arises in her favor. The doctrine of these cases is that the wife’s money in the husband’s hands is a trust fund and the property in which he invests it' becomes trust property (Alkire Grocer Co. v. Ballenger, 137 Mo. 369; Frost v. Frost, 200 Mo. l. c. 483, 484); that the statute. (Sec. 8309, R. S. 1909) renders nugatory her oral consent to her husband’s use of her separate money and that her oral direction as to its use by him constitutes no nearer approach to compliance with the statute than doés her oral consent. [Holman v. Holman, supra.] Of these -decisions those which present the husband as the sole actor or as attempting to shield himself behind the wife’s wholly ineffectual oral consent to his use of her money, clearly have no application to the instant case, in which the wife was the sole actor and, after advising with her counsel, deliberately and independently chose the course she took.

In Donovan and Boyd v. Griffith, supra, the answer set up that.the husband acted as the wife’s agent and at her direction. While it was competent for the wife to constitute the husband her agent, she could not by oral authorization confer upon him an agency to reduce her personalty to possession. The statute requiring written assent of the wife to such reduction cannot be construed to permit sucb easy evasion. In the opinion in that case the general rule was applied without comment on this matter. Even if it be assumed that the agency referred to in that case was not one for the reduction to possession of the wife’s personalty, but was one for the investment of the wife’s money and the taking of a deed of designated character, and further assumed that such an agency could be constituted orally by the wife, then the general rule would have applied and the presumption of a trust would have arisen from the wife’s payment of the purchase money and the court did not find an intent overthrowing the presumption. In any view that case is not authority against the judgment in this.

'Pfl.Tti'i nti Deeds. III. Other oases cited are those in which partition deeds are involved. Neither such deeds nor proceedings under the partition statute convey any title. They merely. ‘ ‘ adjust the rights of the parties to the possession.” In such circumstances a partition v deed, the wife being the interested owner of a share in the property, conveys nothing to the husband though she-directs that it be made to herself and to him. It conveys no title to her. Her mere consent or direction to include his name adds nothing to its conveying power and, of course, such oral direction cannot of itself constitute a conveyance. [Propes v. Propes, 171 Mo. l. c. 417; Powell v. Powell, 183 S. W. 625.] Cases of this sort, therefore, have no tendency to show that the wife’s direction to her attorney that, in this case, the deed be made to herself and husband, was without effect. They have no bearing on the question.

Her Property. IY. evidence Further, It is neither pleaded nor intimated in the that there was any fraud or undue influence, the statement of the wife, made to her attorney, that she wanted her husband to have her property after her death, is not evidence of an intent that a trust was intended by what she did. It does not weaken respondent’s case. It was merely evidentiary of the state of mind which led Mrs. Britain into the investigation of the relative effect and availability of different methods of accomplishing a purpose. That purpose, she concluded, was best served by the deed she caused to be made. The judgment is right and is affirmed.

All concur, except Bond, P. J., absent.