Hynds v. Hynds
| Decision Date | 06 December 1913 |
| Citation | 161 S.W. 812,253 Mo. 20 |
| Parties | A. J. HYNDS et al., Appellants, v. GEORGE HYNDS |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. Nat. M. Shelton, Judge.
Reversed and remanded.
J. M McCall, P. J. Rieger and Joseph Park for appellants.
(1) The law is well settled that to establish adverse possession in one cotenant against another, there must be such outward acts of exclusive ownership as to impart notice to the cotenant that an adverse possession is intended. Misenheimer v Amos, 221 Mo. 362; Benoist v. Rothschild, 145 Mo. 408; Waifield v. Lindell, 30 Mo. 282; Huston v. Huston, 139 Mo. 236. The evidence conclusively showed that Parmelia Hynds had been in adverse possession since 1858. The amended answer in effect pleads that she was a trustee for defendant and his answer clearly seeks to charge the land with a resulting trust. Equity follows the law in applying laches and limitations. Burrows v. Cook, 215 Mo. 496; Steuton v. Thompson, 234 Mo. 7; Rutter v. Carothers, 223 Mo. 631. A resulting trust may be barred by limitation. Burdett v. May, 100 Mo 13; Defter v. McDonald, 196 Mo. 399; McKee v. Downing, 224 Mo. 115. (2) To prove an implied or resulting trust it is not sufficient to show money in the hands of the trustee but the trust money itself must be traced into the land. Phillips v. Overfield, 100 Mo. 466; Huelteman v. Vasselman, 38 Mo. 590; Reed v. Painter, 129 Mo. 682. And the proof to establish it must be so clear, strong, unequivocal as to banish every reasonable doubt. Burdett v. May, 100 Mo. 13; Johnson v. Quarrels, 46 Mo. 423; Forrester v. Scooville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Gillespie v. Stone, 70 Mo. 505; Overshiner v. Britton, 169 Mo. 352; Dexter v. McDonald, 196 Mo. 399; Smith v. Smith, 201 Mo. 547; Philpot v. Penn, 91 Mo. 38. In ejectment it is unnecessary to plead the Statute of Limitations as it operates on the right to the land and vests title in the adverse occupant. The operation of the statutes may be shown under the general allegations of the petition or general denial in the answer. Nelson v. Broadbeck, 44 Mo. 596; Fulkuson v. Mitchell, 82 Mo. 13; Holmes v. Kring, 93 Mo. 452; Stooker v. Green, 94 Mo. 280; Fairbanks v. Lang, 91 Mo. 628.
Higbee & Mills and Campbell & Ellison for respondent.
(1) It was shown by the record that the settlement, known as "defendant's exhibit A" and a deed introduced and read in evidence are not preserved in the bill of exceptions. Such failure to preserve all the evidence is fatal to a review of the evidence in this court. McCulley v. Dewitt, 163 Mo. 306; McKinney v. Norcutt, 114 Mo.App. 146; Moore v. Harmes, 123 Mo.App. 34; Davies v. Boyers, 140 Mo.App. 592. (2) It is conclusively shown by the evidence that at the time of the death of John Hynds, his widow, Parmelia Hynds, owned no property. That all of the property transferred to their children was purchased with the trust funds which came into the hands of the widow while she was acting as administratrix and guardian. That many years ago she had settled with each of her children by segregating the interests of each in said estate, and setting apart to them their respective interests. That after the settlements with those children there remained in the estate only the lands involved in this controversy. It is conclusively shown, in fact, tacitly admitted, that the defendant never received anything from the estate except the lands involved in this controversy. When a guardian, curator, or administrator purchases property with trust funds, a trust results in favor of the ward or beneficiary. Patterson v. Booth, 103 Mo. 405; May v. May, 189 Mo. 485; In re Ferguson Estate, 124 Mo. 574. The conceded fact that Parmelia Hynds owned no property at the time of her husband's death and that she afterwards acquired title in her own name to various tracts of land, is in itself sufficient evidence to show that the lands were bought with trust funds. Prewitt v. Prewitt, 188 Mo. 675. The plaintiffs do not attempt to explain the reason for the long continued silence, except that some of them said it was a "matter of such little importance that they never thought about it." Plaintiff's claim is stale. Bliss v. Prichard, 67 Mo. 181. (3) The appellant's brief is devoted to a discussion of the law relating to "gifts" by aged and feeble persons, and the law relating to express trusts. Neither of said legal propositions have any place in this case. There is no claim on the part of the defendant that would bring the case within the rule relating to express trusts. The defendant claims the property because the same was purchased with trust funds, of which he was the beneficiary. The defendant does not claim that the land was a "gift" to him. That is he does not claim that it was a "gift" in the sense of a donation. His claim in this regard is that his brothers and sister had received their distributive shares of his father's estate and that the lands involved in this controversy were segregated and set apart to him as his part of the estate. That said lands were not donated to him, but were given to him as his part of the estate; given because he was the owner. All of the estate, except said land, had been distributed to the other children and he took said lands merely as his distributive share in the estate.
Ejectment in the Adair Circuit Court.
From certain evidence (in which a "partition suit" is referred to) we conclude plaintiffs had sued defendant at some prior time for the partition of certain lands in Adair county, that therein defendant claimed adverse possession and that thereupon such proceedings were had in that suit that plaintiffs were either cast or that the cause was abated until plaintiffs brought ejectment and tried out title.
At any rate, in March, 1909, plaintiffs sued in ejectment to recover three tracts of land in Adair county, for convenience here designated as A, B, and C. Tract A is the south half of the southwest quarter of section 12, township 61, range 15, except the right of way of the Wabash railroad. Tracts B and C are two outlying tracts of timberland that need no description.
Plaintiffs aver they were lawfully entitled to possession on a certain day in October, 1899. They lay ouster as of May 18, 1908.
Defendant answered with a general denial, following that by the averment that he was the owner in fee and in possession as such, claiming title; but that plaintiffs claimed some interest adverse to defendant's title. Thereupon the answer goes on to pray the court to ascertain the respective titles, estates and interests of plaintiffs and defendant, and adjudge the same severally, and finally determine all the rights and claims of the parties and adjudge and decree defendant to be the absolute owner, that plaintiffs and neither of them have any title, and for all proper equitable relief.
(Note: The pleader evidently undertook in his answer to state a cause of action under former section 650 to determine and quiet title -- now section 2535, Revised Statutes 1909 -- and this by way of defense, without reference to a counterclaim.)
Presently, at the same term, plaintiffs filed their motion to strike out all that part of the answer following the general denial for sundry and divers reasons, but as the motion was overruled and no assignment of error is made on that ruling, it is put away from us.
At the same term plaintiffs filed their reply in which, after denying allegations of new matter, they more fully exploited their alleged title, claiming as heirs (children and grandchildren) of one Parmelia Hynds, who died intestate seized as owner of the premises and in possession at the time of her death, to-wit, in 1898, and averring that defendant was also an heir (child) of Parmelia and was devisee of another deceased heir, one Rit Hynds -- also a child; that as such heir and devisee defendant was entitled to an undivided two-fifths of the land as tenants in common with plaintiffs; that two of plaintiffs, A. J. Hynds and Jennie Mahaffey, were each entitled to a one-fifth as such tenants, and that the other plaintiffs, naming them, were the widow and children of a deceased heir of Parmelia, to-wit, William Hynds, and as such entitled to his share, to-wit, an undivided one-fifth as such tenant. After restating the averment of the petition that defendant wrongfully withholds possession, etc., plaintiffs renew their prayer for judgment.
At the next, to-wit, the January term, 1910, on the trial at the close of the evidence, defendant filed an amended answer. This amended answer was a replica of the former with the addition of what the pleader called a "cross-bill." In a nutshell the cross-bill set forth these averments: That in 1858 John Hynds died intestate in Adair county, leaving a widow, Parmelia, and certain children, one of whom was defendant, then aged two years, and William, A. J., and Richie (Rit) and Jennie Mahaffey; that Parmelia was appointed administratrix, took possession of the estate, to-wit personal property of the value of $ 2500; that with the money and assets in her hands as such administratrix she bought the land described in the petition, taking title thereto in her own name; that afterwards on dates and in ways mentioned in the answer, she settled in full with all the children of John Hynds for their respective distributive shares in his estate with the exception of defendant and that the distributive shares so paid to said children respectively were accepted in full settlement; that there remained only the described real estate, so paid for out of said trust...
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