| Mo. | Jan 15, 1873
delivered the opinion of the Court.
This was an action in the nature of a bill in equity to divest out of defendants the title to the north half of the north-east quarter of section 19, township 45 of range 45, in Johnson county, and invest the same in Martha J. Woodford, wife of plaintiff, Julius Woodford.
The petition in substance alleges that the plaintiff, Martha J. Woodford, first married Humphrey J. Marshall, and that after she was married, she received a large amount of personal property from her father, among which was a fine horse, and all of which was held by her for her separate use, and that her late husband sold part of this property with the express agreement that the proceeds of sale were to be invested in lands for her separate use; that he took this money and entered the tract of land in dispute, and made the entry in his own name instead of hers, but that the land was entered for her and with her money, and was always held by him for her.
The defendants by their answer deny all the material allegations of the petition, and allege that the money belonged to Humphrey J. Marshall, her late husband in his own right, with which the land was entered. The defendants also set up as a bar to this suit a former judgment in partition between these same parties, in which part of the lands belonging to her former husband was allotted to the plaintiff as her dower, and the remainder, including the piece in controversy, was sold, and John Price, one of the defendants in this suit, became the purchaser.
The case was submitted to the court for trial, and the court found for the plaintiffs and gave judgment, vesting the title
The evidence upon which this decree is based is preserved in the bill of exceptions, and the facts as developed are as follows :
In the year 1848, the plaintiff, Martha J. Woodford, whose maiden name was Martha J. Shivers, intermarried with Humphrey J. Marshall, in Johnson county, Mo. That at, or just before the marriage, her father had given her a horse and soon afterwards a cow and a heifer, and four or five sheep, and two beds and plenty of bedclothes. Some months after the marriage her husband, Marshall, went to her father’s house and brought home the horse, cow, heifer and sheep. That in 1850 or 1851, Marshall sold the horse with another horse to John S. Jones for $130 for both; that the other horse so sold brought in the sale $75. The land in dispute was entered by Marshall in his own name in December, 1853. The witnesses on the part of plaintiffs testified in substance that they heard Marshall speak of this land in 1860 or 1861, and that he called it Martha’s land, that he had entered it with money he got for the sale of Martha’s horse that had been given to her by her father; that when persons wished to buy this piece of land he would say, it is Martha’s land, go to her if you want it. Martha testified that she claimed the land as hers; that she claimed it as hers in the presence of her husband, Marshall. The evidence also showed that as long as Marshall had the horse he received from his wife’s father he called it Martha’s horse.
On the part of the defense it was in evidence by the testimony of John Price and his wife and sister-in-law, all oi whom are parties to this suit, that the evening before the land was entered by Marshall, he came to Price’s house in a great hurry to borrow the money to make the entry, saying that there was another man wanted the land, and it would ruin him if he did not get it. He wanted land office money, and Price let him have $100 in gold and silver to enter the land with; that on his return from the land office he said he had ridden all night and made the entry, and as he returned home met the man going to enter the land.
The defendants in this case are the brothers of Humphrey J. Marshall and his sisters and their husbands. Marshall died in 1861, intestate and without any lineal descendants.
The partition suit was brought by the defendants against the plaintiffs, and in that suit the plaintiffs by their answer admitted that Humphrey J. Marshall died seized of this land, and they did not set up in that suit that the plaintiff’s wife was the equitable owner of this tract of land; that suit resulted in the allotment of dower to these plaintiffs in a part of the laud, but did not include this tract; and this piece, with the remainder of the lands, was sold at partition sale, and the defendant, Price, bought this tract/ \
The foregoing constitutes all the facts developed by the evidence on both sides.
I am unable to perceive upon what principle the decree oí the Circuit Court can be upheld.
It is too well settled to need illustration or citation of authorities that the husband, by marriage, acquires an absolute right to all the personal property in possession belonging to his wife, and that all subsequent acquisitions by his wife oí choses in possession, vest absolutely in him unless such acquisitions be given or transferred to her or him for her sole and separate use. Where a husband, by means of the marriage, acquires the absolute right to personal property in possession, he can not be declared a trustee for his wife by loose and general remarks made in conversations. To establish such a trust against the husband, the authorities are united that the evi dence must be clear and unequivocal. (Clancy 260; Walter vs. Hodge, 2 Swanst. 97. Walker adm’r, vs. Walker, 25 Mo., 367" court="Mo." date_filed="1857-07-15" href="https://app.midpage.ai/document/walkers-administrator-v-walker-8000125?utm_source=webapp" opinion_id="8000125">25 Mo., 367.) There is not a particle of evidence in this case to show that the small pittance of property received, by Marshall, the former husband of plaintiff’s wife, was received or held by him for her sole and separate use. His loose declarations in the presence of his wife or others to the effect that this land was
The declaration of the wife that this land was hers, is no sufficient evidence of a trust. If the money was his with which the land was entered, a trust, in favor of his wife or any one else could only be manifested or proved by writing. Conceding that it might be created by parol, it must under the statute of frauds be manifested by writing. To create a trust whether in regard to real or personal property, the act must be done with that intent, and must be manifested by clear and unequivocal evidence. The loose remark of Judge Currier in Tennison vs. Tennison, 46 Mo., 77" court="Mo." date_filed="1870-03-15" href="https://app.midpage.ai/document/tennison-v-tennison-8002878?utm_source=webapp" opinion_id="8002878">46 Mo., 77, to the effect that the husband in receiving personal property coming to him by the marriage is presumed in equity to take it as the separate property of his wife, is unsupported by a single authority so far as I know. It was not necessary to the conclusion arrived at in that case, that he should have made this remark, and the other judges might have concurred in the result without assenting to this dictum.
A marriage without anything further, both at law and in equity, transfers to the husband absolutely all her choses in possession unimpressed by any trust in her favor, created or manifested by the mere act of reception.
Even if there had been sufficient evidence of a trust in favor of the wife in regard to the horse, etc., received by the husband, the weight of evidence clearly shows that the land was not purchased with the proceeds of the sale of the horse. The facts and circumstances all tend to prove that he borrowed the hundred dollars from Price, with which he entered the land, and afterwards paid Price the amount so borrowed.
There seems to be no possible light in which the facts of this case can be viewed so as to support the decree of the Oir
Tbe judgment is reversed, and the petition dismissed.