193 Mo. 167 | Mo. | 1906
— This is an action, begun by plaintiffs against the defendants in the circuit court of Daviess county, the object and purpose of which is to have the title to one hundred and twenty acres of land, described in the petition, the legal title to which is now in defendant Samuel Sperry, declared to he held by him in Irust for the plaintiffs.
The petition, in substance, states that the plaintiffs, Alice Reed, Lelia Hill and Forest Sperry, and the defendants, William Sperry, Nearest Sperry and Ruby Sperry, are the only children of the defendant Samuel Sperry and his wife, Miriam Sperry, now deceased; that defendants William, Nearest and Ruby Sperry are necessary parties to a complete determination of the questions involved in this controversy, and they are made parties defendant because they refused to join as plaintiffs herein; that the said Miriam, wife of the said Samuel Sperry and the mother of the other parties to
The petition further alleges that the said defendant Samuel withheld the knowledge of the fact that the title to the lands purchased from Roger was taken in his (Samuel’s) name, and wrongfully neglected to advise said Miriam of said fact, but fraudulently concealed the same from her, and that she died without knowledge of said fact. The petition further alleges that plaintiffs first learned- of the facts therein stated less than one
"Wherefore, the plaintiffs say, that by reason of the premises aforesaid, said defendant Samuel Sperry holds the title to the said west half of the northwest quarter of section 7, aforesaid, in trust for them and that he has wrongfully converted to his own use the said $1,000; that before the commencement of the suit they demanded of the said Samuel Sperrythat he convey to them their interest in the said west half of the northwest quarter of section 7 aforesaid, and that he pay to them their portion and share of the said sum of $1,000 received from the said Henry F. Elliott, as the purchase price and consideration received for the said lands sold and conveyed to him, but that said defendant Samuel Sperry refused to do so or to accede to said demand.
Wherefore, the plaintiffs pray the court to declare the title to the lands aforesaid, so vested in the said defendant Samuel, be held by him in trust for plaintiffs; that said title be divested out of the said defendant Samuel and vested in the plaintiffs, and that he be required to pay the plaintiffs their share of the said-sum of $1,000, with interest from the 6th day of June, 1896, and for all other proper relief.
Defendants, by leave of court, filed an amended answer in which they deny each and every allegation in the petition contained. Further answering, they allege that there is a defect of parties plaintiff, and that the cause of action or ground of relief set up in plaintiffs’ petition is an entirety and cannot be subdivided. Further answering, they allege, in substance, that any
Plaintiffs filed a reply to the answer which in effect denies all allegations as to the new matter therein contained.
Mrs. Miriam Sperry’s mother, Eliza Burton, died the owner of a large body of land in Daviess county, which was, on the 14th day of June, 1880, duly partitioned among her heirs, and said Miriam was allotted fifty-three acres thereof as her share in said lands. Plaintiffs claim that on the 21st day of July, 1880; she and her husband, the said Samuel Sperry, sold and conveyed the said thirteen-acre tract to John Burton, her brother, for $216.66, and on the 7th day of November, 1881, she and her said husband sold and conveyed to one Lewis L. Walls the remaining forty acres, for the sum of seven hundred dollars, two hundred dollars of which was paid in cash, and to secure the remaining five hundred dollars of the purchase price Walls executed to Samuel Sperry four promissory notes which were secured by a deed of trust on said forty-acre tract. In the year 1883 this trust deed was released by said Samuel Sperry. On the 14th day of March, 1883, defendant, said Samuel Sperry, purchased from David Koger, for the consideration of $1,250, as recited in the deed of that date by Koger and wife to said Sperry, three forty-acre tracts, or the one hundred and twenty acres of land involved in this litigation. This deed was duly recorded in the
On the 20th day of September, 1887, Mrs. Sperry died, leaving surviving her her husband and their six children, all of whom are parties, either as plaintiffs or defendants, to this suit. Alice, who is the eldest, was then about seventeen years of age; Lelia about ten, mnd Forest, the youngest, about seven years of age.
Under the statute of this State concerning married 'women, which was in force at the time, the land inherited by Mrs. Sperry, from her .mother’s estate was her separate property, and so remained until sold by her and her husband, and then the proceeds arising from such sale remained her separate property until, by her assent in writing, reduced to the possession of her said husband. [Laws 1875, p. 61; secs. 3295, 3296, R. S. 1879.] And if he invested the proceeds arising from such sales in the three forty-acre tracts in question, and took the title in his own name, he held said title during her life, in trust for her, and at her death in trust for her children and heirs at law. [Scrutchfield v. Sauter, 119 Mo. 615; Crawford v. Jones, 163 Mo. 577.] But in order to establish such trust it devolved upon plaintiffs to show by clear and convincing testimony, not only that the proceeds of the sales of the land were reduced to the possession of the husband, but that they were invested by him in the land in which the resulting trust is sought to be established, and constituted all or part of the purchase price thereof. Or, as said in Burdett v. May, 100 Mo. l. c. 16, “The rule which prevails in this State, the general rule elsewhere upon the subject of resulting trusts, requires that in order to prove such a trust it must be established by testimony so.clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. This is the substance and effect of the language employed by the authorities, and by this court in numerous instances.”
Taking the rule announced by these adjudications, which is the general if not universal doctrine upon the subject, for our guidance, is the evidence adduced by plaintiffs of such a conclusive and convincing character as seems to be necessary to establish a resulting trust in favor of plaintiffs in the land in'controversy? To make out their case, plaintiffs introduced as a witness David Koger, the person from whom defendant Samuel Sperry purchased the land in question, who testified that Sperry told him it was with his wife’s money he was paying for the land. This alleged statement by Sperry must have been made in March, 1883, as it was on March 14th of that year that the deed to the land was made by Koger to him.
A Mrs. McCully, another witness for plaintiffs, testified that Samuel Sperry told her at her house, about twelve years before the trial of the suit, that he got eight hundred dollars from his wife and that he put it in that land he got of Mr. Koger. This is the evidence upon which plaintiffs chiefly rely to support their case. The only money Mrs. Sperry had, which there is any evidence tending to show was applied towards purchasing the land in question, was that derived from the sales of the land inherited from her mother’s estate, which inheritance comprised fifty-three acres, or one thirteen-acre and one forty-acre tract.
Samuel and Miriam Sperry sold the forty acres to Lewis L. "Wall in June, 1881, for the sum of seven hundred dollars, two hundred of which was paid in cash, and to secure the payment of the balance Wall executed notes and a deed of trust to Sperry upon the land. Whether or not these notes were paid before April 22, 1885, does not appear. As we have stated, the land in question was bought by defendant Samuel Sperry from Roger on the 14th day of March, 1883, but there is no evidence that this $500 was paid before said land was paid for by Samuel Sperry, which it devolved upon plaintiffs to show, for if said $500 had not been received by Sperry, it could form no part of the purchase price of the lands conveyed to him by Roger.
With respect to the $200 paid at the time of the sale of the forty-acre tract to Walls, the record shows that Mrs. Sperry about that time invested $140 in a mare, two colts and a cow, and that she also bought her husband a watch, and thus invested approximately the $200 in personal property; but it would seem she always claimed the said watch as her own.
Upon the part of defendants the evidence tended to show that Samuel Sperry had ample means to pay for this land, and in the absence of testimony of a clear
In Burdett v. May, supra, the court says: “The testimony in this cause, it will be observed, is made up for the most part of the verbal admissions of the party against whom the resulting trust is sought to be established. Touching the subject of such admissions and the weight to be given them, Greenleaf states: ‘The evidence consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say.’ [1 Greenl. Ev., sec. 200.]”
In cases of this character we usually defer to the finding of the chancellor who heard the evidence and observed the demeanor of the witnesses while testifying; but aside from and independent of such finding, an examination of the facts disclosed by the record fails to convince us that the evidence adduced is of such a character as we deem necessary to establish a resulting trust, in favor of the plaintiffs, in the lands sought by them to be charged therewith.
The judgment is accordingly affirmed.
