*1
LÁRue,
LaRue v.
207
Having
acquired
so
421.]
the cause of'áction to the exclu
sion of the minor children, by
performance
pre
condition
by
scribed
Section 4217, plaintiff could'thereafter
sue tó enforeé the
same within the
time limited
4221,
Section
namely,
one
after the cause of action
[Hayes
accrued.
Williams,
manded. All concur.
Paulina
F.
Larue,
E.
Larue,
Mathias
Peter
Larue
Pau
lina
Larue,
Albert
Miller,
H.
Guardian, Appellants,
Her
v. Elizabeth Larue.
Division 1927. Conveyance: 1. PLEADING: Wife; Fraudulent To Defraud Heirs and conveys Cause of Action. He who to his unlawful wife to conceal ownership purpose defrauding and for the his children in- of their heritance, and homestead, it, his real wife of her recoyer dower and cannot death; and his children cannot recover it after his and a petition, to establish implied resulting trust, brought by wife, his children and said reál alleges which that he “took title to said real estate in the name of defendant purpose concealing thereof, defrauding for the and of depriving state respective rights heirs,” doe's, them of their as his widow and cause of action on behalf children. wife, 2. -: -: To Defraud Action.' Wife: Cause of Decedent’s knowing may participating acts,'
neither nor in his fraudulent maintain- an recovery equitable action for the of dower and in real estate home'stea.d conveyed by -purpose depriving him another for the her of her marital " rights therein. . Proof., an.'implied The evidence establish 3.- RESULTING trust, TRUST: technically constructive, cogent,, resulting or must be so'1 whether clear, unequivocal positive doubt from the mind-of as to banish chancellor. Ability Buy. wife establish In a- suit the-real -:-: 4. in real estate con- implied dower and homestead and to recover trust an veyed wife, he indicating that unlawful evidence husband’s to her deceased bought ¡property, might -for he with which had the - (cid:127) did, showing sufficient. is not none but .... 18, Distribution, C..J., Juris-Cyc. Descent and Corpus References: Section -Section'287, Dower, j., 864, 113, p. 94; 19 C. 111, p. n. 9. n. Section Equity, 50; 556', 289, p. 45; 288, p. 556, 21 39 n. 511 n. Section
(cid:127)p. n. Section Trusts, Pleading, Cyc., p. J., p. n. 54. n. 79. C. Cyc., Section p. p. 166, 62; n. n. 89. (Stl Frey, City of A. B. Court of Appeal from Circuit Louis. —Son. ’ Judge. Affirmed. You. Missouri, SUPREME Court oe
,
Jlilherbammr,
Robert Walker and
appellants.
William
(1)
equity
When a
appeal,
it is for
cause
this court on
comes
pavo
hearing
originated
de
and will
as if
be considered
it had
here
*2
to
appellate
be heard
first
will sift
for the
.time. The
court
finding
the whole evidence and
of the -trial court
determine what
been,
Lins
judge
should have
and is
both fact and
v.
law..
287;
280;
Mo.
172 Mo.
Price v.
Lenhardt,
Overall,
127
Turner v.
prop-
Morrison,
(2)
resulting
291
A
trust is created where
Mo. 266.
erty
person
title
money or
of one
and the
for with the
assets
is
controlling
person, and the
thereto is
of another
taken
the name
money.
Shaw,
question
v.
86
purchase
is
of the
Shaw
274;
598;
Clare,
142
Morris v.
132 Mo.
Maxwell,
Mo.
v.
Condit
Mo.
232;
Cyc.
(3)
39
118.
No claim is made that
LaRue made
If
provision
defendant,
bought
for
and took
in her name.
if he
title
any
be
a
indulged,
can under
presumption
such
circumstance
is
and circumstances
one,
by
and it is
the facts
rebuttable
rebutted
Gillespie
946;
298
249 S.
Thiery
Mo.
W.
Thiery,
v.
evidence.
(4)
only did
S.
not make
Gillespie,
v.
John Brnis resulting strong, (1) clear, trust to a must Evidence establish be unequivocal, positive definite and to leave no cogent and so y. 395; Wavrin, Tiers, 75 S. W. Wavrin v. room .Viers doubt. 158; 243 W. ,220 931; Kelley, S. Bartlett v. W. Woerheide v. S. 579; 289 Gillespie Gillespie, W.. Shaw 944; v. S. White, 272 S. W: n ' purchases (2) Where the husband Shaw, 598. v. Mo: conveyance wife, means, a made but causes with his own gift wife, be a the transfer to presumed that he intended it is only by rebuttable, it can be overcome presumption and while the in mind of chan- leaving no doubt positive evidence clear v. LaRue. 1927] Stevens, 929; 273 S. Bender,
ceEor. Bender v.
S. W.
Stevens v.
1066; Dyer
92;
W.
v.
Dyer, Cox,
ram,
paid for involved and the the real estate owning land, occupying it a defendant; the and as that he died thus consequence, is plaintiff widow, entitled to homestead; that the plaintiff subject thereto, speci- the heirs to and, dower and homestead prayer in the fee. The is for fractional interests fied undivided according plaintiffs into the the defendant divestiture of title out of of interests of a determination the respective interests, for .to their general costs, for As and relief. possession parties, for and all the ‘‘ alleged LaRue deceased characterizing of the the intention of the name defend- to said real estate took title LaRue said ownership and de- concealing thereof, of purpose of ant for the respective rights of their as depriving plaintiffs these frauding and George LaRue.” said heirs of the widow plea a general denial and ten- is a of answer
The defendant’s Revised Limitations, Statutes Section year Statute of bought real estate in con- that she an affirmation coupled separate means. of her own out consideration troversy recognized in of as briefs pleadings, As forecast pur- as to the fact is issue counsel, the ultimate money passing* transaction. chase was is that twice married. undisputed evidence August, 1881, Catherine, who died he had one wife,
By his-first sons, appel- in 1899 his death child, Frederick, who left of his first months after the demise Four and Peter. lants Mathias Sup. 317 Mo. —14. SupRemb op Court Missouri, Yol. wife, or in December, 1881, G-eorge appellant married the Paulina
(cid:127)LaRue, who bore him- year a later a daughter, appellant Paulina F. LaRue, E. also known Lena, as designated. hereinafter so In 1883 when the latter was about a old, the former became af- flicted with some form of melancholia, and, whether for that reason or because away, driven plaintiffs’ one surmised, witnesses neighbor woman took both daughter mother'and from LaRue’s home own, shortly thereafter the father of Paulina carried her and her daughter infant back County. to his home in Montgomery Thence, Paulina was presently asylum transferred to an insane where she since has remained. Lena has continued to live in the grandfather. home maternal preparation
"In employed her confinement Paulina as domestic servant and attendant the respondent, Elizabeth LaRue, who then girl years about old, seventeen one of six children of humble parentage, being their living father a common laborer in a rented house. Elizabeth employment continued in her as a servant in the LaRue home from before the birth of Lena in 1882 until the de- parture of Paulina and in 1883, per- Lena and thereafter until formed additional work as an assistant in the office from which the deceased LaRue conducted a retail coal business. The uncon- testimony (though tradieted doubted appellants, brief) two-year during their is that period LaRue made trips several Pennyslvania, relatives, longest where he had about two-weeks. February, 1885,
In George proposed marriage Elizabeth, ex- hibiting paper purporting copy to be authenticated of a decree Supreme Huntington County, Court of Pennsylvania, dated February 24, 1885, granting him, as plaintiff, a divorce from the appellant Paulina LaRue. Elizabeth testified she read over the de- it genuine, cree believed and for that reason never submitted it *4 lawyer. copy to a He a newspaper also showed her of a called the Springfield "Weekly Journal, Volume No. Springfield, dated Thursday, February 19, 1895, containing Mo., an advertisement on notifying- page' the defendant in a suit George fourth between Mapleton, Huntington Paulina LaRue “to be County, LaRue and Pennsylvania, Tuesday, on and State of the 24th day February, ’’ failing, judgment against 1885, and would rendered him. Eliza- paper because, said, my she “it preserved beth interest.” was Objection-was appellants' made counsel for tt> the introduction of respondent would these documents unless concede both-the divorce being agreed, they void. This were null and decree notice were good entering defendant’s faith in evidence, “to show admitted Appellants’ marriage George LaRue.” inference is that with perpetration of a papers procured scheme, in the on the were LaRue v. LáRue. part George' of botb and Elizabeth, fortify against possible pros- a ecution bigamy following contemplated bogus marriage. a ceremony
A marriage George between per- Elizabeth was April formed at St. Louis They together lived before thirty-seven the world as man and wife for until years his death age nearly eighty-five at the years, bearing she him four (not parties record) children who, her, to the with constituted family party wtire name. was a to seven of the in- She deeds by appellants troduced in evidence to show the real transac- estate mentioned, tions hereinafter all of them her surname was given “LaRue;” grantor as them, joined four of wherein she as wife; finally, LaRue, and, she was described as his when appellants this suit was instituted sued as Elizabeth was “LaRue.” issue, appellants attempted
On the main their to establish case the purchase price tó into trace of the Bates Street property pro: pieces ceeds from the sale of other of real estate theretofore owned by George showing appellants’ LaRue. In fact the whole consisted family history of a narrative their three witnesses of the evidencing just- real estate transfers prior 1895, plus deeds im- alleged admissions, inconsistencies and to, plus referred certain testimony respondent, LaRue. Elizabeth probabilities in'the marriage of the void be- prior that at and to the time appears It Frederick,- Elizabeth, son, former and his George and tween designated by adjoining in St. Louis street' number lots owned two Pennsylvania Avenue, respectively. Their title 7911 and as LaRue, deceased, mother of Frederick was derived from Catherine had, claimed thé'feé George, seems, George. and first wife vacant, and a life 7913, which was estate lot at No. title to.the There was a small in Frederick. frame with the fee lot at No. family lived. It was to the LaRue which cottage.on the latter lot in household as entered the went when .she Elizabeth this home that sup- after her family a member lived servant, and here she 1895. In that Frede- years ten until marriage, for about posed quit-claim of both- deed executed whereupon married, rick did dollar. Elizabeth of one consideration for a Frederick lots to as “husband of George was described join in this deed city about of St. intestate Louis died LaRue, who Catherine thé vacant quit-claimed day Frederick the same On August, 1881.” consideration Elizabeth like Pennsylvania Avenue at 7913 lot , of one dollar. lot; into which vacant on the was built Forthwith, a house being surrendered house of the old possession moved, Elizabeth dwelling this new house testified to Frederick. specifically record nothing *5 the is There money. own with her built SupRemb op Missouri, Yol. Court the contrary, appellants to dispute claiming but the her, Elizabeth separate events, had no this, presently. means—but of more At all George Pennsylvania and Elizabeth lived in the new home at they years Avenue property. for about ten until sold the George In the February, 1900, in foreclosed meantime, securing mortgage against Michigan a loan he held a lot on Avenue Louis, in and in the foreclosure property St. bid at the sale. He and expressed $2,000 Elizabeth deeded the lot consideration of for who, Fred H'oertel, to W. about three October same conveyed for like later, the to Elizabeth consideration. weeks same George’s marriage Elizabeth in 1885 At the time of frustrate also, and from then a lot at owned, until 300 Schirmer his retail coal Street which was used for business and yard. This, remembered, pieces made three coal it will be real at Elizabeth, him and viz.: the 7913 Penn- estate owned Michigan sylvania Avenue, property, and the Avenue the Schirmer being former two held property, Elizabeth, title to the Street the being George. title the latter the. George’s failed and forced retirement from health busi- .In year he sold his-coal business and the In of that ness. December $2500, remaining for yard for the nineteen coal Schirmer Street living unemployed, life continued an invalid years eighteen later, July, About months their children. Elizabeth and Pennsylvania property, the Avenue 1905, Elizabeth and sold preceding years, living for $2500. ten they had for where been Michigan Avenue and there re- they moved to Thence they place sold that for but on June year, sided about $2500. purchased Bates later, June days
Two now, a consideration of $1118.75. property, controversy Street five about the LaRue unimproved, and months tract was thereon, house was quarters until a erected family in rented lived George LaRue’s he died home when they It was’ moved. into which children the time of of Elizabeth and the home story personally paid she in cur- is that Elizabeth’s the trial below. consideration, gran- money and received from the rency and coin property. purchase of In this exchanged in deed, tor explicitly testimony, by any cor- direct is uncontradicted she eye they who were witnesses children, assert of her roborated say part it, LaRue took no them All of transaction. in another room. Elizabeth house, bed sick though in the he was in. own, money as was the used m further, says, that though may appellants insist building the house. belonged her. they funds, disbursed im\ LaRue v. LaRue. *6 this, On the erueial issue in case, the Elizabeth testified in that
1884, when she eighteen years was old, she had an uncle named Spring, Christian her lather’s husband, gave sister’s who her $6,000 in money. paper money The was for by services father, rendered her and was by Spring to her at her father’s suggestion direction or Spring after had first offered the to the father and the latter had gift refused accept No it. was made Spring at the time mother, her sister or four Spring brothers. Afterward went to Germany and and traveled then returned to St. where died.- The year of his remember, death she did not except that it was some away Pennsylvania time before she moved from neigh-, the Avenue in 1905. borhood died When he he left her second brother house money. gifts some any He never made members of her family than father’s other herself and this brother. This $6,000 kept in person. the house on her never It was banked. Pennsylvania From it she built the house Avenue. re- in way mainder she to save the same was continued until it used buying building Bates property the Street house there, the ex- cept after supplemented that became an invalid 1904 she earnings defraying family the therefrom of four children the living expenses. proceeds of Elizabeth made no claim to the from the (cid:127) sold between 1903 1906. The' properties
three George’s property Schirmer was $2500 received from the Street —the Pennsylvania property from Avenue title in him. the $2500 was Michigan prop- the Avenue apparently, $2500 was and the from his, name; in her erty his, though to both these tracts stood the title land had any recollection that the latter been indeed, disclaimed she money through George lost her. But she stated that conveyed to Bates prior her'purehase of the Street investment unfortunate $5,000 in cor- put, says, than June, 1906. she more property He (cid:127) failed and went Company, which Shoe porate Tennant stock the which he lost months, as a result of bankruptcy within three into all. story of this venture.' in Elizabeth’s discrepancies are some
There George bought the Shoe Coni- that she stated examination On direct (in property Street shortly of the Schirmer pany the after stock sale $2500 was the money he then had only 1903), the and that December, her testi- we understand and —if property sale from the Pennsylvania Avenue the from the sale mony $2500 derived —the time of fixed cross-examination July, 1905. On property Michigan Avenue in lived they while as 1906 the investment same sales from the $5,000 used came property,' and said Ap- property. Street and the Schirmer Michigan Avenue Supreme 2,14; Missouri, oe Court Yol.
pellants days point only elapsed stress the that as between Michigan purchase sale Avenue Bates , property, Street whole financial excursion could not been .they made and brief ended disaster within that interval —and so story brand her entire as false. Before, foregoing fairly
I. The
fully
reviews the evidence.
determining
weight
given
it,
and effect of
consideration should
far
appellants’
the issue
bill.
Clearly,
tendered
so
petition
appellant heirs,
concerns the
fails to state
Right of
good
jurisdictional
na
cause of action. This defect is
Heirs.
self-asserting.
ture,
v. C. A. Railroad
and-
&.
[Chandler
*7
Kelly
Co.,
599,
35;
Trimble,
251 Mo.
158 W.
State ex rel.
v.
592,
S.
297
charges
Mo. 104, 124,
pleading
247 S. W.
187.]
wrongful
part
intent on the
of
his owner
LaRue
conceal
of-defrauding
ship
purpose
of.
Bates Street
wife, Paulina,
inheritance,
heirs of their
and his
of
dower and
living
prosecuting
If
were
suit
homestead.
the.
would,
him
had
equity
not
from
which he
be
extricate
situation
Fielder,
[Derry
176,
fraud.
v.
216
come involved
his own
Mo.
682,
412;
Williams,
707,
307
271
v.
Mo.
W.
193, 115 S. W.
Keener
S.
his,
interest
before
489.],
His
had no vested
descendants
token,
heirs,
permitted,'
death, and,
the same
will
be
his.
asserting
the same fancied
turpitude of
ancestor
plead the
their
West,
621,
125 Mo.
by succession.
v.
action, claimed
cause of
[Sell
508; Rowley Rowley,
S. W.
Rep.
969,
28 W.
49
v.
628,
S.
Am.
197
-
.,
152, 155.]
:
-
widow, Paulina,
stands
respect
appellant
In
the case
II.
of the
alleged
footing.
party
was not a
on a different
She
Right
Wife.
pleading
of
nor
conveyance
is neither
fraudulent
and there
knowledge
participated
or -had
proof
therein
that she
an innocent
alleged she was
contrary,
thereof. On
under the
facts
Perry
on Trusts
injured party
and entitled to relief.
[1
224 S.
212;
Garringer,
W.
Ed.)
v.
(6.
p. 355,
McGehee
Trustees.
sec.
equity have
of
early
State courts
an
in this
828,
day
From
830.]
re
cognizance for the
equitable
jurisdiction in cases
assumed
Snider,
183, 187; Devorse v.
Davis,
(Davis
5 Mo.
covery of
v.
dower
236, 245,
228, 235,
Donaldson, 249 Mo.
235, 239;
60
v.
Mo.
Donaldson
975); and
its
974,
Collier,
S. W.
199
791; Weller v.
155 W.
S.
21
227,
S. W.
234,
Thrasher,
222,
Mo.
115
(Young v.
assignment
881).
61
185,
S. W.
173, 181,
Newton, 162 Mo.
1104;
v.
Newton
extends.even
jurisdiction
that
authority elsewhere
There is
such
law.
concurrently
legal
[2
with courts
estates,
is 'exercised'
LaBue
v. LaBue.
1927\
215-
Story, Equity Jurisprudeuee (14 Ed.)
844;
see.
555,
C. J.
secs.
287,
Equity also reaches the
[Harrington
289:]
homestead.
v. Ut
terback,
519;
57 Mo.
Hach v. Rollins, 158
189, 59
Mo.
S. W.
232; Growney v. O’Donnell, 272
Mo.
179, 186,
III. When, however, proof we supporting scrutinize the peti tion, we find ourselves say unable to up it measures to the standard this, required in character. As expres cases in a declared recent
sion of this on preceding court the subject, and many Character, cases, the resulting evidence to establish trust must be of Proof. gQ o clear, unequivocal positive as t banish QQg.g-Q^ doubt from the mind of the v. Hodges, chancellor. S. [Hodes 292. W. Everywhere, degree an extraordinary proof 15.] is exacted in whether, implied trusts; establishment of the trust conceived be, technically, resulting ease or- (Ferguson constructive v. Robinson, 258 113, 129, 447), S. W. the doctrine is the same. ' ‘ ' Silver, v. Annotation;] A. L. B. [Lefkowitz
IV. This case is one which considerable deference to the find ings allowed, of the might largely chancellor since the issue turns testimony respondent, LaBue, oral (Wavrin Wavrin, whose character is assailed S. Insufficient Proof. 932); difficulty we háve nó W. but-from the-record reaching independent entirely conclusion accord - indulging appellant’s evidence, the trial all reasonable court. The LaBue had inferences, more than indicate little does *8 purchase in. Bates! might which have been used could used;' showing we that it was so there is no property, Street LaBue to disposed testimony of Elizabeth are not to discredit .the ¡.The „ sec. p. 220, p. 1198,- contrary. Facts, sec. 1060.] [Moore Slupsky, Miller v. 158 proof missing present here was ; . element 577, 63 S. W Jones, 163 Mo. 990, and 643, 59 S. W. Crawford stronger was much and the evidence upon by appellants, relied respects in other Lindsay should be'affirmed. views, nisi Holding these the decree Seddon, GO., concur. adopted C., opinion foregoing EllisoN, PER CURIAM: The judges concur. All court. opinion