Jones v. Elkins

• Decision Date: 08 March 1898
• Citation: 45 S.W. 261,143 Mo. 647
• Parties: JONES et al. v. ELKINS.
• Court: Missouri Supreme Court

45 S.W. 261

143 Mo. 647

JONES et al. v. ELKINS.

Supreme Court of Missouri, Division No. 1.

March 8, 1898.

HUSBAND AND WIFE — SEPARATE ESTATE — TRUSTS — APPEAL — HARMLESS ERROR.

1. A husband, investing the separate money of his wife and his money in land, the wife assenting, but not in writing, as required by Rev. St. 1889, § 6869, and taking the legal title to himself and wife, holds the title in trust for his wife and her heirs, to the extent of the proportion that her money bears to the price.

2. After the purchase of land by a husband with his money and the separate money of his wife, without her written assent, he purchased other lands with his own money and hers also. In the first purchase the wife furnished $1,650 and the husband $150, and in the second she gave $100 and he gave $950. Held, that the second purchase did not affect the former transaction.

3. In a suit in equity, incompetent evidence will be disregarded on review.

Appeal from circuit court, Pike county; R. F. Roy, Judge.

Action by James T. Jones and others, as heirs at law of Eliza J. Elkins, deceased, against Silas A. Elkins. Judgment for plaintiffs. Defendant appealed. Affirmed.

Clark & Dempsey, J. D. Hostetter, and Robt. Shackelford, for appellant. Tapley & Fitzgerald, L. L. Scott, and W. W. Bowker, for respondents.

BRACE, P. J.

On the 5th day of April, 1890, one S. H. Henderson, who was the owner of the real estate described in the petition, by general warranty deed of that date, conveyed the same to the defendant Silas A. Elkins and Eliza J. Elkins, his wife, for the recited consideration of $2,000. The land conveyed is situate in Pike county, and contains 99 acres. In March, 1894, the said Eliza J. Elkins died, without issue, leaving the plaintiffs, her brothers and sisters, her only heirs at law. Afterwards, on the 16th of July, 1895, this suit was instituted by them against the said Silas in the circuit court of Pike county, charging that said land was paid for by him with the separate moneys of his said wife, which she had received by inheritance and gift from her relations, and that the said defendant had taken the title thereto in the joint names of himself and wife, without her knowledge and contrary to her wishes, and praying that he be declared a trustee for the plaintiffs of the legal title acquired by said deed, and that he be devested thereof, and that the same be vested in the plaintiffs. It appeared, from the evidence, that only $1,800 in money was paid for the land, and that the remaining $200 of the purchase price was allowed as a credit thereon for the use of the farm for one year after the sale by the vendor. The evidence tended to prove, and the court found, that of the $1,800 so paid $1,650 was the money of the wife, the said Eliza J. Elkins, which came to her during the coverture by gift and inheritance, and that the remaining $150 was the money of the husband, the said Silas A. Elkins, and thereupon decreed that the legal title was held by the said Silas as to the undivided eleven-twelfths of said land in trust, for the use and benefit of the plaintiffs herein, heirs at law of the said Eliza J., as aforesaid, and the remaining undivided one-twelfth in his own right in fee simple. From this decree the defendant appeals.

By the terms of our statute the personal estate of the wife, which comes to her during coverture by gift or inheritance, remains her separate property and under her sole control, unless, by the express assent of the wife in writing, full authority shall have been given by the wife to the husband to sell, incumber, or otherwise dispose of the same for his own use and benefit. Rev. St. 1889, § 6869. While the evidence tends to...