Higgins v. Higgins

• Decision Date: 28 February 1874
• Citation: 55 Mo. 346
• Parties: JOHN HIGGINS, Defendant in Error, v. DENNIS C. HIGGINS, Plaintiff in Error.
• Court: Missouri Supreme Court

55 Mo. 346

JOHN HIGGINS, Defendant in Error,

v.DENNIS C. HIGGINS, Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1874.

Error to Davies Circuit Court.

M. A. Low, for Plaintiff in Error.

I. The petition shows that John Higgins could not have legally entered the land in his own name, and the entry was made in his son's name to evade the pre-emption laws of the United States. No resulting trust can be set up, if it would break in upon the policy of the law, or a public statute. (Miller vs. Davis, 50 Mo., 572; Alexander vs. Warrance, 17 Mo., 228; Baldwin vs. Campfield, 4 Halst. Ch., 891; Ex parte Yallop, 15 Ves., 60; Ford vs. Lewis, 10 B. Mon., 127; Cotington vs. Fletcher, 2 Atk., 156; Muckleston vs. Brown, 6 Ves., 68; 1 Sto. Eq. Jur., § 294; Cooth vs. Jackson, 6 Ves., 12.)

Milt. Ewing, for Defendant in Error.

I. The petition does not show that the father entered the land in the name of the son, for the purpose of evading any act of Congress.

II. The petition is sufficient after verdict.

III. Where a father purchases or enters land in the name of his son, although the presumption is, that it was intended as an advancement to the son, yet that presumption may be rebutted by testimony.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Davies Circuit Court, to divest the title in and to a tract of land out of the defendant and to vest the same in the plaintiff.

The petition is as follows:

“Plaintiff states, that on the_____day of August, A. D. 1855, he purchased and entered at the land office of the United States at Plattsburg, Missouri, the following lands, to-wit: The South-East Quarter of the North-East Quarter of Section thirty-five, of Township sixty-two, of Range twenty-eight, in the County of Davies and State of Missouri, containing forty acres, at the price and sum of fifty dollars, in the name of the defendant, a child of the plaintiff, now aged about sixteen years.

Plaintiff further states, that at the time he entered said land, that he had filed his pre-emption claim thereon and doubts arose as to the validity of his pre-emption; and one Dennis Clark was about to enter the land and take it from the plaintiff, and as plaintiff could not enter until the time of proving his pre-emption on said land expired, in order to make sure of the land and avoid a law suit with the said Clark, in relation to the same under his pre-emption, he purchased the same in the name of the defendant.

Plaintiff further states, that he has recently removed with his family, including defendant, to the State of Iowa, from his former residence in Davies County, Missouri, and having sold out in this county, he desires to sell this land also.”

He then prays for a decree divesting the title to the land out of defendant and vesting it in plaintiff, &c.

The defendant was served with process and afterwards, a guardian ad litem, was appointed for the infant defendants. The record shows that the guardian filed an answer, but none appears in the record; but no objection is taken by the parties to the...