12 Mo. 157 | Mo. | 1848
delivered the opinion of the court.
David Thompson brought his bill in chancery in the Callaway circuit
To this bill the defendant filed a general demurrer, which, upon argument was sustained by the circuit court, when the case was brought to this court by writ of error.
The facts set out in the bill being admitted by the demurrer, the question is whether they make out a case which entitles the complainant to the aid of a court of equity.
It is conceded that if a stranger had voluntarily paid the balance due on the land, no trust would thereby have been created in his favor; for it is not in the power of an individual thus to raise a trust for his bene
The estate therefore, instead of losing any thing by her acts, has profited by them. The distributees of Philip Dirtin have no just cause to complain of this view of the subject, because the money paid by the widow constituted no part of Philip’s estate, which by course of law would have descended to them.
The facts charged in the bill, make out, under the foregoing views, a clear case of resulting trust, in favor of Mary Dirtin or those claim* ing under her, by bringing it within the rule that where an estate is paid for with the money of one individual and the title taken in the name of another, a trust arises in favor of the individual whose money has been used in the acquisition of the estate.
If we should regard Mary Dirtin as a tenant in common with the legatees of Philip Dirtin, and as having paid the balance of the purchase money, to save the land from forfeiture, her claim to indemnity from her co-tenants would be equally clear and conclusive. In either aspect, therefore, she is entitled to a ratable proportion of the land ac* quired by the purchase.
The bill further charges, that, the defendant Renoe, prior to his pur* chase, had notice that Mrs. Dirtin had paid, out of her funds, twdthirds of the purchase money for the land in controversy; taking a title, with a knowledge of these facts, Renoe becomes a trustee for her; and
We do not regard the proceedings in the circuit court, allotting her dower or making partition of the land (it being uncertain which object was in contemplation) as estopping her or those claiming under her, from setting up and insisting upon her claim as made in the bill. It is obvious enough, that the proceedings had in the county court were had under a misapprehension of the law governing the rights of widows to dower. The act of 1817 was in force at the death of Philip Dirtin, the husband, and under that act, the widow would only be entitled to a dower interest of one-half of the land ; whilst under the act in force at the time of the proceedings in the county court, the widow would be entitled to one-half of the land absolutely; and it was under this last act that the partition was made. If her rights had really been what the commissioners and the circuit court supposed them to be, and what she appears to have acquiesced in, then most likely no question would have arisen in this case; but, after a sale' of the land allotted to her, and her death, it is ascertained that if she held only a dower estate, unthe act of 1817, her estate had terminated, and the land would revert der to the legatees of Philip Dirtin.
The judgment of the circuit court should, for the reasons aforesaid, be reversed, and the case remanded to the circuit court for further proceedings to be had not inconsistent with this opinion.