241 Mo. 376 | Mo. | 1912
— This is an appeal from a judgment of the circuit court of Greene county in favor of plaintiffs. Defendants appeal. Plaintiffs and defendants are the children and heirs of Patrick Mugan, deceased.
It is alleged in the amended petition that Patrick Mugan died on the —day of November, 1905; that on the —day of ■ — •, 1893, he was the owner of the land in controversy, situated in said county and particularly described in the petition, being a tract of about six acres; that in the year 1893” the said Patrick Mugan conveyed said property to his daughter, Eliza Banfield, one of the plaintiffs herein, in trust, to be held by her for him, and that said Eliza Banfield, at her father’s request, conveyed said propei’ty to her sister, Molly Mugan, one of the defendants, “to be held in trust by
I. Eespondents raise two preliminary questions which require attention, before considering the errors assigned by the appellants. ,
(a) It is urged that the appeal should be dismissed for the reason that appellants have failed to comply with Eule 15 of this,court, providing that appellant “shall separately allege the errors committed by the inferior court,” etc. An examination of the appellants’ brief has satisfied us that this objection is not well founded. The brief sets out the alleged errors of the trial court intelligently and in numerical order, with the authorities in support of each proposition, and that is all that is required. [Wallace v. Libby, 231 Mo. 341.]
(b) Eespondents also contend that “the judgment should be affirmed because appellants have not incorporated their motions for a new trial in the bill of exceptions, as printed in the abstract of the record and filed in this court, nor the order of court, if any, filing and overruling same.”
What purports to be the bill of exceptions in the printed abstract consists largely of a recital as to orders, motions and rulings, following which, instead of setting out such order, motion or ruling, there is a note referring to the abstract of the record proper where they may be found, and they do appear on the
This court has many times held that the proper place for all matters of exception, as set forth in the printed abstract of the record filed in this court, is in the bill of exceptions, and not in the record proper. There is no authority for taking what is matter of exception out of its place in the bill where it belongs and transposing it -to the record proper where it does not belong, nor is there any economy in so doing, although it works a great inconvenience to this court. Were this a question of first impression, the sufficiency of this abstract, at least as to the bill of exceptions, would be a matter of grave doubt. However, in the case of Booth v. Railroad, 217 Mo. l. c. 715, upon facts almost identical with those before us, this court said:
“But the counsel say that on page 17 the motion appears to have been copied into the record proper where it had no lawful place. It is true the motion had no lawful place in the record proper and if it was not in fact set out or called for in the bill of exceptions it would avail the appellant nothing. But the abstract of the bill of exceptions signifies that the motion was copied therein, and the reference to another page where it is printed in full was only to save the useless trouble and expense of printing it a second time.”
Under the authority of the Booth case we rule this point against the respondents.
The bill of exceptions does show that the motions for a new trial were filed by the defendants in due
II. The case was tried upon an amended petition, The original petition therefore became an abandoned pleading, and could only be made a part of the record as a matter of exception. It was not so preserved, and for that reason the question whether the amended petition is a departure from the original cannot be considered. , [Railway Co. v. Bank, 212 Mo. l. c. 517; Forrister v. Sullivan, 231 Mo. 345; Rule 9, Rules of this Court.]
III. The petition alleges that the property was conveyed by the grantor, Patrick Mugan, to Eliza Ban-field, “in trust, to be held by her for him, and that on the ---day of--said Eliza Banfield, at the request of her father, Patrick Mugan, conveyed said property to her sister, Molly Mugan, to be held in trust by the said Molly Mugan for the use and benefit of said Patrick Mugan and his heirs.”
Appellants contend that as there was no allegation of fraud or mistake in’the conveyance, nor that the deeds were intended as mortgages, the petition fails to state a cause of action.
The petition states a cause of action upon the theory that the conveyance created an express trust in the defendant Molly Mugan, and although the statute (sec. 2868, R. S. 1909) provides that such a trust shall be proved only “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,” yet it is not necessary that the petition should allege the existence of such written evidence. The presumption is that the
IY. The deeds introduced in evidence were absolute and unconditional conveyances on their faces, but they were not for that reason incompetent, for the evidence that an express trust was in fact created by the conveyance may have existed in a separate writing. [Hall v. Bank, 145 Mo. 418.] Here we reach the fatal weakness in plaintiffs’ case. There was no written evidence whatever in support of the allegations of the petition that the conveyances were made in trust, and the oral evidence offered for that purpose was incompetent and should not have been admitted over defendant’s objections. Under the requirements of the statute, only upon written evidence can such a trust be established, and the statute has been uniformly so construed by this court. [Green v. Cates, 73 Mo. 115; Rogers v. Ramey, 137 Mo. 598; Hall v. Small, 178 Mo. 629; Crawley v. Crafton, 193 Mo. 421.]
It follows that the court erred in refusing defendants’ instruction in the nature of a demurrer to the evidence, asked at the close of plaintiffs ’ case, and fox that reason the judgment is reversed.
