Johnston v. Johnston

• Decision Date: 18 February 1903
• Citation: 173 Mo. 91,73 S.W. 202
• Parties: JOHNSTON et al. v. JOHNSTON et al.
• Court: Missouri Supreme Court

73 S.W. 202

173 Mo. 91

JOHNSTON et al. v. JOHNSTON et al.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

WIFE'S SEPARATE ESTATE — INVESTMENT — JOINT SECURITIES—ESTATE BY ENTIRETY— SURVIVORSHIP—RESULTING TRUSTS—FUNDS — IDENTIFICATION—MORTGAGES — PRIORITY —ACTION BY HEIRS — WITNESSES — COMPETENCY—CONTRACT OF DECEASED PERSON— OBJECTIONS—WAIVER.

1. Defendant and his wife loaned certain money to F., and thereafter defendant presented to F. an itemized account, signed and sealed by both defendant and his wife, which showed that the part advanced by the wife amounted to $1,800. A note secured by a trust deed was taken for the entire debt, payable in two years to the defendant and his wife jointly. The trust deed was not foreclosed at maturity, nor until some time after the wife's death, when defendant purchased the property, paying $85 cash and crediting the balance on the note. In a previous action defendant testified that the $1,800 had been saved by his wife from housekeeping, etc., and that, though he had desired to borrow the same, she had refused; but in an action to enforce a trust in the wife's interest he testified that the money belonged to him. Held, that the evidence warranted a finding that the $1,800 belonged to the wife, and not to defendant.

2. Estates by entirety in personal property may be created in Missouri, and as to such property the common law relating to estates has not been changed, except by the married woman's act, which has taken away the husband's common-law right to the wife's personal property and choses in action, except such as he had a vested right to reduce to possession before the passage of such acts.

3. Where a husband invested a portion of his wife's separate estate with his own money in a note secured by a deed of trust on real estate, payable to the husband and wife jointly, to the wife's knowledge and with her consent, such investment did not constitute an estate by the entirety with the right of survivorship in the husband, but each was entitled to a proportionate share of the securities.

4. Where a note secured by a deed of trust was given to a husband and wife jointly, the wife having contributed part of the funds secured thereby, and after the wife's death the husband foreclosed the deed and purchased the property, paying a small amount in cash and crediting the balance on the note, the wife's funds were sufficiently traced into the land so as to entitle her heirs to recover her proportionate share thereof.

5. Rev. St. 1899, § 4652, provides that, where one of the original parties to the contract or cause of action is dead, the other party shall not be permitted to testify in his own favor, or in favor of any party to the action claiming under him. Held, in an action by the heirs of a deceased wife to enforce a resulting trust against her husband arising from an investment of the funds of the wife's separate estate, the husband was an incompetent witness.

6. Where an incompetent witness, after objection, was cross-examined only as to matters to which he testified in chief, the objection to his competency was not waived.

7. Where heirs of a deceased wife, entitled to enforce a resulting trust as to her interest in certain land, permitted the title to stand in the name of her husband for several years, during which time the husband mortgaged the entire property to a bona fide mortgagee, the rights of the heirs were subject to the mortgage.

8. A bill to declare a resulting trust in land to the extent of the money contributed thereto by defendant's deceased wife was properly brought by the wife's heirs, and not by her administrator.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Bill by Anna Isabel Johnston and others against Daniel Johnston and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

This is a bill in equity, the purpose of which is to establish a resulting trust in favor of the plaintiffs in lots 13 to 16, inclusive, in city block 968, in the city of St. Louis, having an aggregate front, on the south line of Stoddard street, of 110 feet. The circuit court dismissed the bill, and the plaintiffs appealed.

The undisputed facts in this case are as follows: The plaintiffs are the children (and their husbands) of the defendant Daniel Johnston and his former wife, Mary Ann Johnston, née Fury. The defendants are the said Daniel Johnston and his third wife, Mary Ann Theresa Johnston, née Gheraty, and the Lincoln Trust Company. The defendant Daniel Johnston's first wife was a sister of his second wife, the plaintiffs' mother. The latter was a widow when Johnston married her in 1873. She died in 1885, intestate, leaving the plaintiffs as her only heirs. No administration was ever had upon her estate, and none was necessary, as it appears that she owed no debts. Prior to and on December 12, 1881, Ann Fury, the mother of Daniel Johnston's second wife, Mary Ann, and the plaintiffs' grandmother, owned the land in question as her separate property. Prior thereto, to wit, between July 27, 1877, and that date, Daniel Johnston loaned his mother-in-law, Ann Fury, or her husband, Michael Fury, $2,206.08. His wife, Mary Ann Johnston, had also turned over to her father or mother $1,800. Michael Fury then died, and Ann Fury was on December 12, 1881, a widow. On that date Daniel Johnston presented to his mother-in-law, Ann Fury, an itemized statement of the amount he had loaned or advanced to Michael Fury and Ann Fury, and what he claimed was due him as rent, amounting to $2,206.08. To this statement was appended at the end thereof the following: "Add money advanced to Ann Fury by Mary Ann Johnston, $1,800. Total amount due by Ann Fury to Daniel Johnston and Mary Ann Johnston, as per above statement, on January 1, 1882, $4,006.08. For which amount said Ann Fury has given her note, dated January 1, 1882, secured by deed of trust of date December 12, 1881." This was signed and sealed by Daniel Johnston and Mary Ann Johnston. The note was payable to Daniel Johnston and Mary Ann Johnston, and the deed of trust securing the note described them as beneficiaries. The note was payable at two years, and there were also semiannual interest notes. At the time this settlement was had, and this note and deed of trust were executed, there was a prior mortgage on the land for $5,000. Thus the matter stood when Mary Ann Johnston died in 1885. Daniel Johnston married his present wife in October, 1886. In August, 1893, the trustee under the deed of trust of December 12, 1881, being alleged to have removed from the state, Daniel Johnston procured the sheriff of St. Louis to be substituted as trustee, and caused him to foreclose the deed of trust, and at the sale Elizabeth Robeson, acting for Daniel Johnston, and not for herself, purchased the property and immediately deeded it to him. The bid was for $5,000, but Johnston paid the sheriff only $85 cash, and had the balance of the bid credited upon the note of Ann Fury to himself and his deceased wife. During the years 1884, 1885, and 1886 (which was partly before and partly after the death of Mary Ann Johnston), Daniel Johnston paid off the first deed of trust on the land, paying for that purpose, it is charged, $7,350. He also paid the taxes on the land and other expenses incident thereto, and on the other hand has received the rents. On May 23, 1899, Daniel Johnston borrowed $7,020 from the Lincoln Trust Company, and secured it by a deed of trust on the land. He tore down the house or houses that were on the land, and with the money borrowed from the trust company, and perhaps other money of his own, and, as he alleges, with $3,000 of his present wife's money, he put up new buildings on the land. This suit was begun to the February term, 1900, of the St. Louis circuit court.

The only disputed fact in the case is whether the $1,800 aforesaid was the money of Mrs. Mary Ann Johnston or of Daniel Johnston. He claims and testified that she never had any money, and his witnesses testified that they never heard of any property or money belonging to her. He testified upon the trial of this case that he "fetched home money to give to her father, so he could pay the mechanics as the cellar would be built, and as the joists were put on, and different payments to them, so she could have it to hand to him," and that it was his money, and that he only placed it in her custody to be handed by her to her father, for the purpose of paying for a house that her father was putting up on the land in question, which belonged to his wife, Ann Fury. On the other hand, the plaintiffs introduced a transcript of the evidence thereby preserved in the case of Fredericka Schmidt et al. v. Daniel Johnston, from which it appeared that he testified that his former wife, Mary Ann Johnston, advanced $1,800 of the $4,006.08 covered by the note and deed of trust of Ann Fury, dated December 12, 1881; that he could not say exactly when she advanced it; that she told him the amounts she gave, and he lumped it all together and added it to his itemized account; that "she saved most of the money from housekeeping and such as that"; that she had no money except what she saved. And when his attention was called to the fact that in 1877 he himself was in the market as a borrower, and he was asked to reconcile that fact with his claim of having loaned his father-in-law $4,000, he answered as follows: "A. There was a large portion of that she had saved previous to that, housekeeping money. Q. She would not let you use it, and preferred to have you borrow the money from Mr. Schmidt or your father-in-law? A. She had an idea of having some money saved up for cash money herself, and when her father wanted to build she gave it to him." This admission, together with the physical facts in the case, constitute the evidence upon which the plaintiffs rely to prove that the $1,800 was their mother's money, and that such money had gone into...