145 Mo. 638 | Mo. | 1898
This is an appeal from a judgment in favor of defendants. Upon a ruling of the circuit court rejecting certain evidence tendered by the plaintiffs the plaintiffs took a nonsuit with leave to move to set the same aside. In due time they moved the court to set aside the nonsuit, and the court declining to do so they appealed to this court.
The plaintiffs are heirs at law of Stephen C. Allen and the defendant, Isaac N. Allen, is a son of Stephen Allen, and the other defendants are minors and heirs at law of Stephen Allen deceased.
The petition alleges, “That prior to the 5th day of March, 1887, said Stephen C. Allen was the owner in fee simple and in possession of the following
The prayer of the petition is: “That said Isaac N. Allen be declared a trustee holding said lots for the benefit of the heirs aforesaid of said Stephen C. Allen deceased, andthat he be required to make an accounting of the amount of money paid out by him on account of Stephen O. Allen deceased, that would be justly charged against said real estate, and all sums of money realized by him from the sale of any part of said lots and from rents and profits thereof, and that said lots .......be ordered to be sold and the proceeds resulting therefrom be ordered to be divided among the heirs of said Stephen O. Allen deceased, according to their respective rights as hereinbefore stated.”
The answer of the defendant denied the contract or agreement set up in plaintiffs’ petition, and pleaded affirmatively that he took the property from his father by purchase and that he paid him full and fair value for the same, and alleged with particularity the amounts so paid him.
The contention of appellant upon this appeal is that the court committed reversible error in excluding
I. It may as well be noted that plaintiffs dismissed their action as to lot 1 in block 2. The answer denies the agreement set up in the petition, and the statute of frauds is available without special pleading. Boyd v. Paul, 125 Mo. 9; Devore v. Devore, 138 Mo. 181; Hackett v. Watts, 138 Mo. 502; Wildbahn v. Robidoux, 11 Mo. 659; Springer v. Kleinsorge, 83 Mo. 152; Hurt v. Ford, 142 Mo. 283.
II. “All declarations or creations of trust or confidence of any lands, tenement^ or hereditaments shall be manifested and proved by some writing signed by the party who is or shall be, by law, enabled to declare such trusts or by his last will, in writing, or else they shall be void and all grants and assignments of any trust or confidence shall be in writing, signed by the party granting or assigning the same or by his or her - last will, in writing or else they shall be void.” R. S. 1889, sec. 5184. By the next section 5185 it is provided that resulting trusts or such as arise by implication of law are not affected by the foregoing statute. That a resulting trust may be established by parol evidence no longer admits of doubt in this State. Kennedy v. Kennedy, 57 Mo. 73; Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Philpot
The essential inquiry that arises upon this record is whether the trust sought to be proved and enforced is an express trust or an implied resulting trust. If express, there can be no resulting trust, and parol evidence is not admissible to prove that an absolute conveyance was made upon an express trust not declared in the writing itself. Green v. Cates, 73 Mo. 115; Kingsbury v. Burnside, 58 Ill. 310; Stevenson v. Crapnel, 114 Ill. 19.
The character of the alleged trust in this case must be ascertained from the petition, and the evidence offered in support thereof. The averment is susceptible of but one construction, to wit, the deed was made upon an express agreement upon the part of Isaac N. Allen to pay off the incumbrance of $400 and upon this sum being refunded to him to reconvey lot number 7.
The question propounded was, as follows:
“ Q. Mr. Johnson I’ll ask you to tell the court if you know of an agreement bekoeen Isaac N. Allen and his father, Stephen C. Allen, at the time this deed was made from Stephen C. Allen to Isaac N. Allen on the 5th of March, 1887, by the terms of which Isaac Allen was to reconvey the property to Mr. Allen, upon his repaying to Isaac the money that Isaac was to advance to pay off those certain mortgages and a judgment lien against these lots? Don’t answer until they object.”
“Defense: I’ll ask you if you know whether that agreement was in writing or simply verbal"?” “Admitted that it was only verbal.”
“A. No, sir, 1 don’t know of any loritten agreement.” Objection sustained.
It is nowhere averred that the father was indebted to the son or that the deed was made to the son to
If these averments and this testimony do not charge an attempt to establish an express trust of lands, then it would be difficult indeed to define an express trust within the meaning of the statute. As the parol evidence offered was in plain contravention of the statute, the court properly excluded it. Price v. Kane, 112 Mo. 412; Bobb v. Bobb, 89 Mo. 411; Weiss v. Heitkamp, 127 Mo. 23; 1 Beach Mod. Eq., sec. 234; Rogers v. Ramey, 137 Mo. 598.
A like conclusion has been reached in other jurisdictions. See, specially, Gee v. Thrailkill, 45 Kans. 173; Wolford v. Farnham, 44 Minn. 159; Biggins v. Biggins, 133 Ill. 211; Champlin v. Champlin, 136 Ill. 309.
The judgment is affirmed.