154 Mo. App. 302 | Mo. Ct. App. | 1911
This action originated in the probate court by plaintiff filing an account for “one-half interest” in certain described lands, “being 140' acres at $35 per acre,” amounting to $4900. There was credited on this account the sum of $450, leaving a balance due plaintiff’s estate of $4450. The claim was rejected by the probate court. On appeal to the circuit court, the finding was for plaintiff; but defendant’s motion for a new trial was afterwards sustained, and from that order plaintiff appealed.
George W. Wolfskill, Sr., died in December, 1904. He was the father of Elijah H., John J: and George W. Wolfskill, Jr. He owned a large tract of land, a part of which (about 280' acres) he conveyed, for a valuable consideration, to John J. by an unconditional warranty deed, dated 11th of October, 1899, with the verbal understanding between the father and the two sons, John J. and George W., that John J. should pay 'certain mortgage indebtedness thereon and account to George W. for one-half interest in the land clear of debt. It being understood, that when George wanted his inter
There were many reasons assigned in the motion for new trial. There is no doubt that it was properly granted. The evidence discloses an express trust and this proceeding is an attempt to establish and, in effect, enforce an express trust without it being manifested “by some writing signed by the party” who creates it. This would be in the face of our statute (sec. 2868, R. S. 1909), as well as decisions of our Supreme Court. [Crawley v. Crafton, 193 Mo. 421; Hillman v. Allen, 145 Mo. 638; Mulock v. Mulock, 156 Mo. 431.]
While an implied or resulting trust may be shown by paro.l evidence, there is nothing in the evidence to make' out a trust of that character. There was no fraud or deception shown. The deed was absolute, expressed to be for a valuable consideration. The transaction, as portrayed in testimony, w^s had with the consent of all concerned. Nor do we think the relationship of the parties, nor the intention of the father as verbally expressed, in any way alters the character of the trust. [Higbee v. Higbee, 123 Mo. 287; Acker v. Priest, 92 Iowa 610; Noe v. Roll, 134 Ind. 115; Stonehill v. Swartz, 129 Ind. 310; Gould v. Lynde, 114 Mass, 366.]