3 S.W. 63 (Mo. 1887), Muenks v. Bunch
|Citation:||3 S.W. 63, 90 Mo. 500|
|Opinion Judge:||Black, J.|
|Party Name:||Muenks v. Bunch et al., Appellants|
|Attorney:||Edwin Silver and R. S. Ryors for appellants. Smith & Krauthoff and Mosby & McCord for respondent.|
|Judge Panel:||Black, J. Sherwood, J., absent.|
|Case Date:||January 31, 1887|
|Court:||Supreme Court of Missouri|
Appeal from Osage Circuit Court. -- Hon. A. J. Seay, Judge.
(1) The decree is absolutely without evidence to support it. Fraud must be proved, not conjectured. Priest v. Way, 87 Mo. 16. (2) The evidence shows that the deed from George Bunch was made for a valuable consideration, viz., the payment by them of the mortgage on the land and the support of the grantor and his wife. (3) The land being the homestead of George Bunch it could not be conveyed in fraud of his creditors. His sons took the land exempt from his debts just as he held it. Holland v. Kreider, 86 Mo. 59. (4) There is a fatal variance between the case stated in plaintiff's bill and his evidence. The bill charges that George Bunch made the deed to his sons to defraud his creditors, and the evidence of plaintiff, if it made out a case for relief at all (which we deny), would be one to enforce an express trust against the land for the benefit of the creditors. Newham v. Kenton, 79 Mo. 383. (5) But such trust is within the statute of frauds and must be evidenced by writing. Lane v. Ewing, 31 Mo. 75; Cornelius v. Smith, 55 Mo. 533; Peacock v. Nelson, 50 Mo. 261. (6) There is no evidence going to show that William N. Bunch took the land with knowledge of any trust in favor of George Bunch's general creditors. Plaintiff's evidence on this point relates only to the statements of James G. Bunch. William Bunch denies all knowledge of any such understanding, and there is no evidence in anywise fixing such knowledge on him. He, therefore, was a purchaser for a valuable consideration without notice of the land being affected with any trust. (7) William N. Bunch could, therefore, convey a good title to Drury Smith in any event. Funkhouser v. Lay, 78 Mo. 459; Craig v. Zimmerman, 87 Mo. 475. (8) The evidence shows Drury Smith to be a bona fide purchaser for a valuable consideration. (9) The conveyance of George Bunch to his sons was not a mortgage, and the cases cited by respondent do not support him in this claim. (10) The trust in this case, if any, is an express trust and within the statute of frauds. R. S., sec. 2511. Implied trusts stand either upon the presumed intention of the parties, or, independently of such intention, are forced by operation of law upon the conscience of the person seized, as in cases of meditated fraud, notice of an adverse equity, or the like. 2 Minor's Institutes [3 Ed.] 214. Such implied trusts, it is true, are not within the statute of frauds, but that is not this case. See R. S., secs. 2511, 2512; Peacock v. Nelson, 50 Mo. 261. Even if this were a case of implied trust plaintiff's evidence is insufficient to establish it. Forrester v. Moore, 77 Mo. 662. This action on the trust theory, being within the statute of frauds, neither plaintiff...
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