James N. and Katie E. Morris were baron and femme. In 1908 said baron sued his femme in equity in the circuit court of Buchanan. The object and general nature of the bill was to declare a resulting trust in his favor in certain real properties, to divest title out of his wife and vest it into himself, and (in aid of the suit) to have a receiver appointed pendente lite to take charge, collect rents, insurance losses, pay taxes and make repairs. By amendment to the bill a certain policy on the life of plaintiff for the benefit of defendant, issued by the New Tork Life Insurance Company for $1000, was brought into the case as part of the subject-matter of the litigation. The said properties are described as follows: Lot 4 in block 15, Wyatt Park; lots 10, 11, 12 and 13, in block 137, South St. Joseph Addition; and lot's 1 and 2 in block 15 in the same addition — all situate in the city of St. Joseph. There was a decree for plaintiff for all parcels except the last, to-wit, the two lots in block 15 in South St. Joseph Addition. The title to the latter was quieted in defendant. It was also decreed that defendant turn over said policy. By an intermediate order a receiver was appointed who seems to have made final settlement and received acquittance.
On due and timely steps, defendant appealed, giving a supersedeas bond.
After jurisdiction was lodged here, plaintiff died and A. B. Medlin, public administrator of Carroll county, in charge of his estate, and Mary S. Meister (a married daughter) the sole surviving child of the Morrises were substituted as plaintiffs and the cause stands revived in .their names by stipulation. Throughout this case, however, for convenience sake we will speak of Mr. Morris as plaintiff.
The gist of the bill is that on sundry given dates
The answer joined issue on those allegations, admitting, however, that she held title.
The record is long and much of the testimony is in such conflict as to make the task of reconciling it a hopeless one. So, the discourse of some of the witnesses flies so high it cannot be followed without precaution against danger of disturbing judicial calmness. For instance, we are sorry it justly deserves such observations as these: If we believed everything testified to on both sides, by narration and suggestion, plaintiff would be a good husband, an industrious, so-'
Moreover, we would believe that Mrs. Morris (though not strong physically) braved snow storms to earn money by writing, by teaching, later by raising chickens and selling eggs, but that mostly by uncommon shrewdness, economy and thrift (and with but little financial aid from her husband) she took the property given her by her parents and by swaps, mortgages, saving her rents and untiring attention to her affairs, she added thereto and laid up against a rainy day in her own name all the property mentioned in the bill. Contra, by the same token we would believe that she was an invalid, frequently under the expense of a doctor’s charge, not able to do her housework and was one who never earned a penny or had a particle of property except what she got from her husband’s wages and the profits of his business. And so on and so on.
Fortunately much of the exaggerated color of the testimony of the immediate parties to the quarrel (we refer to the ladies of the Morris and Meister families, and to a sister of Mrs. Morris, Mrs. Crarney) may be referred to that inflammation springing not unfrequently in persons of a certain temperament and environment when • the sweet milk of domestic love and felicity is changed into the gall and bitterness of discord and angry strife over antagonistic claims to
“Q. He pushed this lady, over eighty years old, into the wood pile? A. He had to do it, to protect himself from her.
“Q. You saw marks, though? A. No; I thought she was just like a snake; I wouldn’t touch her.
“Q. You left her lying there in a crippled condition? A. Why, she was not in a crippled condition. The next morning she came into our house.
“Q. You would not handle her on that occasion, would you? A. No; I don’t believe I would touch her.
“Q. If she had been in a dying condition, you would not have touched her? A. No; I wouldn’t.
Q. You would have seen her die there without trying to do anything? A. Yes, sir.”
We are moved at this point to make a remark or two and pause long enough to do so, viz: The Scythians, it is said, ate their grandmothers when through with the old ladies, but Mrs. Meister would not even touch hers in extremis. She also had droll notions as to grandfathers’ hats (and heads). Vide the following: After testifying that grandfather O’Kouke called her “pretty bad names,” she said she “picked up a brick, threw it at him, knocking his hat off.” At this point the witness, without leave, left the stand and courtroom apparently unseen by counsel, who, busy objecting and saving exceptions, had other fish to fry than to watch her movements. We think so because we find that Mr. Boyd, counsel for defendant, returning to his cross-examination, began a question as follows : “I will ask the question — ” .Thereat, interrupting, the court said: “Well, the witness is gone now, Mr. Boyd.” Another witness for plaintiff, Mr. Nichols, took flame from the prevailing fire. He was asked by Mr. Boyd the following questions and made the following answers:
“Q. Well, is it true? A. It is true! Goddamn you.’’
These incidents might be added to from the testimony of others, but the above will suffice as an index to the welter of emotion at the trial, and which makes much of the testimony of the parties and their partizans of little probative force to convince the judgment or excite the conscience of a chancellor.
We shall not cumber the opinion with all the details of the testimony. To do so would be both impossible and unprofitable. A dispassionate and painstaking estimate of those features of it relating to the gist of the charge in the bill, we think is this:
Plaintiff by trade was a stone fitter. At the outset of his married career he was a saloonkeeper in Topeka, Kansas, but fell into financial misfortune, out of which he was assisted by his wife’s parents. He then moved to St. Joseph, and thereafter plied his trade there and in that region as a mechanic, on wages at times, and at other times took what is called heavy contracting, such as house moving, doing stone work in the reconstruction of buildings, razing buildings, etc. In some of these contracts he made a profit, on others he apparently suffered losses. Sometimes he was out of employment. At a certain time while engaged on a contract, an employee was injured and brought suit against him and certain co-contractors for damages. At that time he owned a home in St. Joseph, a lot and a house of four rooms, and fell upon the plan of avoiding supposed danger from that suit by transferring his home to his wife. He carried out that scheme as to that property. Thenceforward, because of the risks and hazards of his business, he acted on the
“Q. Well, just state what occurred between you and your wife? A. Well, at that time, I was doing a little contract work at the Pacific Elevator Company, a'nd there was a man accidently got hurt up there, and I had just a little four-room house at that time, and it was partially paid for, I don’t think it was all paid for. Then this man got hurt, and they brought suit against me and the Pfeiffer Stone Company and the Elevator Company, jointly. It scared me to death. I just had a little home, and I thought we would save that and have that in our old age. I never knew whether I would ever have anything else or not, and after I got out of that they brought suit, of course, and the suit was throwed out of court, and my friends advised me then, they says: ‘Here, you are out of this, and you don’t know whether you are going to ever have anything else or not. You turn that home over to your wife, and you will have a home,' and they can’t take it away from you.’ That was the beginning of that arrangement.
“Q. Now, at that time, did you have an understanding with your wife, as to that? A. Yes, sir.” . . “Mr. Dolman: Mr. Morris, who furnished the money to purchase all of this property. A. Well, I think that I furnished it. I have been the only earner. . . A. Well, I always brought money home, and it was the understanding that she was to settle all of the accounts and look after general matters and such things. Q. Now, when property was purchased by her, what
On cross-examination, plaintiff testified in part as follows:
“Q. Let me finish my question. And in order to better protect yourself from liabilities which might accrue, and avoid the payment of any liability which might arise, you concluded to buy property and take the deeds in your wife’s name. Is that correct? A. It was an understanding between--. Q. No, I want an answer to my question. A. I don’t understand your question. Just ask the question in a clear way, and I will try to answer it. Q. Yes, sir, I will do so. You were in hazardous business? A. Yes, sir. Q. And you were liable to be sued on account of some injury or some accident which might befall somebody working under you, or with you or for you, or working for somebody else, that your men might hurt? A. Yes, sir; I might be brought into something of the kind. Q. In fact, you were brought into one lawsuit? A. Yes, sir. Q. And the moment you got through with that lawsuit, you concluded that it was probable that you would be sued again, and that the property you
The above puts the position of plaintiff on the question of a resulting trust in the very best light allowable. We are not satisfied that the properties so put in the name of defendant were wholly paid for by the earnings of plaintiff. To the contrary, our conclusion is that defendant’s parents assisted her in acquiring some of it, and that some of it was purchased with her savings from her own rents and the odds and ends of her savings from wages given to her by plaintiff. She seems to have been left to manage her household affairs and family expenses the best she could out of her husband’s earnings, most of which, we think, were turned over to her by him to run the house or pay his debts — she acting as his time-keeper, bookkeeper and paymaster. That she was a phenominally frugal housewife with an eye to laying by, we
As we understand the brief of learned counsel for plaintiff, he does not now contend that the decree was right in so far as it took from defendant the old-line policy of insurance on the life of her husband in which she was beneficiary. He does contend, however, that in other particulars the decree was equit able and supported by recognized equity principles.
There are cases in the books 'where A turns over to B money to invest for A. Where B, in such case, invests in favor of himself, A is not without remedy in equity. Manifestly this is not a case of that sort. There are other cases where a trust arises ex maleficio. Manifestly the instant case is not one of that kind. Nor is it a case of an express trust. Nor does it come within any bounds or definition of any implied trust with which we are familiar, where the question (as here) is between the original parties to the transaction. If creditors in their own'right had filed a creditors ’ bill, then we would have another question to deal with. But this case is on appeal, on a decree on Mr. Morris’s bill, and his administrator, on such appeal, can have here no right decedent would not have had below. If plaintiff, as the testimony strongly suggests, invested his accumulations in the name of his wife to avoid the hazard of business obligations, thereby subjecting his means to hazards arising from matrimonial infelicity, that was his affair and does not concern a court of conscience on his complaint. He should have looked before he leaped and taken care not to jump from the frying pan into the fire. If, as somq of the evidence indicates, plaintiff gave to his wife as a gift such increment of his wages as accrued to her through salvage from debt-paying, or from frugality, then that does not concern a court of conscience on his complaint. Will a chancellor, on his complaint,
We conclude the decree was for the wrong party. Therefore, so far as it was in favor of plaintiff, it is reversed and the cause is remanded with directions that plaintiff’s bill be dismissed. It is so ordered.