180 Mo. 526 | Mo. | 1904
This is a proceeding in equity to declare a resulting trust in favor- of the plaintiff, to thirty and twenty-eight hundredths acres of land, in Jefferson county, Missouri, being the south part of the southwest fractional quarter of section 17, township 41 north, range 6.
The petition charges that on July 28, 1870, J. Wilson MeMurray purchased the land with the money of his mother, Eliza MeMurray, for the purpose of securing to her a home, and that he wrongfully and without her knowledge took the title thereto in his own name;, that she entered into the possession of the premises and claimed them as her own against the world, exercising all acts of ownership thereover until her death in 1899; that by her last will she devised the premises to her son, the plaintiff; that the defendants are the widow and children, respectively, of said J. Wilson MeMurray, deceased.
The answer is a general denial, with special pleas, first, that J. Wilson MeMurray purchased the land with his own money; second, that he was in possession thereof from the time of the purchase until his death in 1898, and that the defendants have been in possession thereof ever since; third, that he improved the property, kept it in repair and paid the taxes thereon for thirty years; fourth, the ten, twenty-four and thirty year statutes of limitation; fifth, that the amounts paid for improvements and taxes exceed the value of the land; sixth, the statute of frauds.
The reply alleges that Eliza MeMurray did not know until within ten years before this action was commenced, to-wit, September 5, 1899, that the title had been so taken in the name of her son, J. Wilson MeMurray; that the money expended for improvements and taxes was her money, and that at the time of the purchase of the land J. Wilson MeMurray was a resident of this State, but that within six months thereafter he
For many years prior to July 6, 1870, John D. McMurray was engaged in the iron foundry and architecttral business in St. Louis. He had several partners, but on the day stated the firm was McMurray, Smith and Judge, each having one-third interest. On the said day he died intestate, leaving a widow, Eliza McMurray, and two sons, J. Wilson McMurray and Robert E. McMurray, the plaintiff. Shortly before his death he conveyed certain property in St. Louis and his interest in the firm to his son J. Wilson McMurray, by a deed absolute on its face, but the son at the same time executed a declaration of trust, wherein he acknowledged that the property was held in trust for the father for his life and for his wife and sons thereafter. John D. McMurray left a policy of insurance in favor of his wife for three thousand dollars, which J. Wilson McMurray collected. He also sold the leasehold in St. Louis, which was occupied as a homestead, for five hundred dollars. With this thirty-five hundred dollars, together with twelve hundred and ninety-five dollars and fifty cents which he drew out of the firm, and perhaps other money of the estate, he purchased the property in question, declaring at the time and many times thereafter, to his partner, Judge, and to others and by letters to his mother, that it was purchased with the means aforesaid, as a home for his mother. As soon as it was purchased, he put her into possession and she remained in open, adverse, continuqus and uninterrupted possession from 1870 until her death in 1899, and during all that time exercised the usual acts of ownership thereover.
From 1870, when he became trustee' as aforesaid, J. Wilson McMurray, continued to manage the family
In addition to this it nowhere appears that J. Wilson McMurray had any means, outside of his interest in the firm, with which he could have purchased this property. He was an officer in the army, with the rank
Thus it clearly appears from the declarations of J. IVilson McMurray, both oral and written, that he purchased this property with the three thousand dollars insurance money that belonged to his mother, and the five hundred dollars resulting from the sale of the leasehold in St. Louis, and with trust funds, for a home for his mother, and it also appears that he put her in possession thereof and she occupied it and claimed it as her own for twenty-eight successive years before his death, and that he never was in possession thereof at any time and never claimed to own it at any time or to any person. In addition to this it is also demonstrable that upon a just accounting he received and retained a sum fully equal to his share of the estate, and that this property and the amount his mother received for living expenses would not exceed the amount she and the plaintiff were entitled to resulting from the insurance money, the sale of the leasehold and their share-of the twelve or thirteen thousand dollars that J. Wilson McMurray received from the trust estate, and hence this property represents money that belonged to> them and not to him.
The law is settled that a resulting trust will nob be declared unless the evidence is clear, strong, unequivocal and so definite and positive as to leave no room», for doubt in the mind of the chancellor. [Curd v. Brown, 148 Mo. l. c. 92, and cases cited.]
It is also the practice of this court in equity cases to give all proper deference and respect to the finding and judgment of the chancellor, but such action of the trial court is not conclusive.
In the case at bar the evidence adduced by the plaintiff measures up to the full requirements of the rule. It is clear, positive, direct, unequivocal and
Under such a showing the plaintiff is clearly entitled to a decree as prayed under the law of this State. [Bird v. Ward, 1 Mo. 398; Stephenson v. Smith, 7 Mo. 610; Valle v. Bryan, 19 Mo. 423; Rankin v. Harper, 23 Mo. 579; Kelly v. Johnson, 28 Mo. 249; Baumgartner v. Guessfeld, 38 Mo. 36; Buren v. Buren, 79 Mo. 538; Sell v. West, 125 Mo. l. c. 630; Shaw v. Shaw, 86 Mo. 594; Boynton v. Miller, 144 Mo. 681; James v. Groff, 157 Mo. 402; Miller v. Slupsky, 158 Mo. 643; Rice v. Shipley, 159 Mo. 399; Johnston v. Johnston, 173 Mo. 91; see, also, 15 Am. and Eng. Enc. Law (2 Ed.), p. 1132, et seq.]
The defense of the statute of frauds is untenable, as the statute has no application to a resulting trust. [R. S. 1899, sec. 3417; Cloud v. Ivie, 28 Mo. 578.]
The defendant, however, relies on the ten, twenty-four and thirty year statutes of limitation. The evi
If, as is now found to be the fact, he held the title as a mere trustee for his mother, the statute of limitation would not be a bar to the suit under the circumstances stated, for the facts constituting the claimed bar to her claim of a resulting trust were not brought home to his mother until 1891. [R. S. 1899, sec. 4282; Buren v. Buren, 79 Mo. l. c. 542, and cases cited; Burdett v. May, 100 Mo. l. c. 18; 15 Am. and Eng. Enc. Law (2 Ed.), p. 1205.]
It follows that the judgment of the circuit court must be reversed and the cause remanded to that court with directions to enter a decree declaring a resulting trust in favor of the plaintiff, and divesting the title out of the defendants and vesting it in the plaintiff.