Viers v. Viers

• Decision Date: 09 June 1903
• Parties: C. W. VIERS, Appellant, v. LILLIE M. VIERS
• Court: Missouri Supreme Court

75 S.W. 395

175 Mo. 444

C. W. VIERS, Appellant, v. LILLIE M. VIERS

Supreme Court of Missouri, Second Division

June 9, 1903

Appeal from Taney Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

Groom & McConkey for appellants.

(1) Under the bill and answer in this case, the court having rendered judgment dismissing the bill, could not at the same time, render a decree divesting plaintiff of all right, title and interest in the lands, and the decree that the legal and equitable title thereto be fully and completely forever vested in the defendant in fee simple, as her separate property and estate, for this was more than defendant asked by her answer, which was only a general denial. (2) This is not a case of conflicting testimony, but one in which the verdict and judgment were directly contrary to all law and evidence. In such cases the Supreme Court will reverse such judgment. Dedo v. White, 50 Mo. 241. The verdict and judgment in this case were manifestly against the law and the evidence, and there is virtually no evidence to support a judgment in favor of defendant. Ackley v. Staehlin, 56 Mo. 558. Under our statute the court in an equity case may give any relief consistent with the allegations of the pleadings. Mead v. Knox, 12 Mo. 247; Henderson v. Dickey, 50 Mo. 161; Ames v. Gilmore, 59 Mo. 537.

R. C Ford for respondent.

This being an equitable proceeding, the bill and answer gave the court jurisdiction. Reyburn v. Mitchell, 106 Mo 365. The doctrine is too well settled to admit of either discussion or dispute that where a court of equity once acquires jurisdiction of a cause it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice between the parties. It will not content itself in this regard by any halfway measures. Real Estate Saving Inst. v Collonious, 63 Mo. 290; Corby v. Bean, 44 Mo. 379; Primm v. Raboteau, 56 Mo. 407. Where a husband buys lands and causes the deeds to be made to his wife, a prima facie case is made out that he intended it to be a settlement upon her, and not a resulting trust, as would arise if there was no such relation existing. Shuster v. Shuster, 93 Mo. 438; Inglefritz v. Inglefritz, 116 Mo. 429. While it is true that facts creating a resulting trust may be proved by parol, such evidence must be clear and unequivocal, and not merely preponderating. Kennedy v. Kennedy, 57 Mo. 73; Philpot v. Penn, 91 Mo. 38. The conveyance of the property in question to the defendant was a settlement upon her, and vested the title in her, so that the settlement could not afterward be revoked by her husband. Schouler on Husband and Wife, secs. 217, 383, 385, and 387; 2 Pomeroy's Equity, sec. 1039; Alexander v. Warrance, 17 Mo. 228; Hollacher v. Hollacher, 62 Mo. 268; Wood v. Broadly, 76 Mo. 31. The onus of establishing a resulting trust rests upon the party who seeks its enforcement, and where it is sought to establish such trust by parol evidence it must, to warrant a decree, be so clear, definite and positive as to leave no reasonable grounds for doubt. Philpot v. Penn, supra; Johnson v. Quarles, 46 Mo. 422; Jackson v. Wood, 88 Mo. 76; Forrester v. Scoville, 51 Mo. 286.

OPINION

BURGESS, J.

The parties to this suit were at the time of the transactions mentioned in the petition, and also at the time of the trial, husband and wife. The purpose of the suit is to have a resulting trust declared in plaintiff's favor to certain lands described in the petition; to set aside and for naught held certain deeds, one from J. A. Weatherman, sheriff of Taney county, Missouri, to Lillie M. Viers, dated November 1, 1895, and recorded November 1, 1895, in book 1, at page 80, Taney county records; also one from Lillie M. Viers and C. W. Viers, her husband, to Madison B. Viers, dated May 2, 1898, and recorded June 4, 1898, in book 11, at page 456; also a deed from Madison B. Viers to Lillie M. Viers, dated May 5, 1898, and recorded September 26, 1898, in book 11 [75 S.W. 396] at page 537, Taney county records, and to invest title to said lands in the plaintiff.

The answer is a general denial.

The court below, after hearing the evidence, rendered judgment dismissing the plaintiff's bill, and decreeing title to defendant. Plaintiff filed motion to set aside the finding, and for a new trial, which motion was by the court overruled. Plaintiff appeals.

There is but little conflict with respect to the facts out of which this litigation grew, they being as alleged in the petition, with the exception of the purpose for which the land was purchased by plaintiff, and who furnished the purchase money.

Plaintiff testified in his own behalf as follows:

"I live in Taney county. In 1891 I was married to the defendant, Lillie M. Viers, at Hannibal, Mo., which place was my home at that time. I was then in the employ of the Hannibal & St. Joseph Railroad Company as locomotive engineer, and was receiving a salary of $ 115 per month. Up to the fall of 1895 I had saved up from my earnings, and had deposited in my own name in the Farmers' and Merchants' Bank of the city of Hannibal, the sum of $ 500, which amount I drew out of said bank some time during the latter part of October of that year and brought the same with me to Forsythe, Missouri, and deposited it in the Taney County Bank. On the 1st day of November, 1895, I purchased at sheriff's sale at Forsythe, the lands mentioned in this suit, for which I paid the sum of $ 118. I purchased the land for a home for myself, and caused the deed thereto to be made to my wife, Lillie M. Viers. In purchasing this land and in having the sheriff execute the deed to my wife, Lillie M. Viers, it was not my purpose or intention to settle this property upon her for her sole use and benefit, nor as a provision for her, but I had the same deeded to her in trust for my own use and benefit for a home. I bought and paid for the land with my own individual money, earned and saved by me at railroad work. Lillie M. Viers, my wife, never at any time put a dollar of her separate money or means into the purchase or improvement of this land or for the payment of the taxes. In all, I have invested between five and six hundred dollars in the purchase of this land and in the payment of current and back taxes against it, and for attorney's fees, attachment liens against the land, and traveling expenses from my home at Hannibal to Forsythe, in looking after it. In the summer of 1899 I left my wife in charge of my business in the city of Quincy, State of Illinois, where we resided together at that time, and I came to Taney county, and moved and settled on this land. But before leaving Quincy I had arranged with my wife to remain there and close out our business, and sell the property I had left there in her charge, which was worth something like $ 600, and then she was to come to me upon the farm here in Taney county and bring the money with which we were to stock the farm. She at one time sent me $ 10 from Quincy, and in a very short time after I left there she ceased to write or correspond with me, and finally, in the fall of 1899, she instituted divorce proceedings against me in Adams county, Illinois, and wrote me that she never intended to live with me any more. The warranty deed from my wife and myself made to Madison Viers and dated May 2, 1898, and the one from Madison Viers to Lillie M. Viers, dated May 5, 1898, both of which purported to convey the land involved in this suit, were made wholly without any consideration whatever, and there was not a cent of either money or property exchanged on account of either conveyance. I am now in the lawful possession of this land, am living upon it and making it my home. My wife, Lillie M. Viers, who is the defendant in this case, refuses to live with me upon this land and she also refuses to longer live with me as my wife."

W. M. Wade, a witness for plaintiff testified as follows: "I am cashier of the Taney County Bank. Sometime about the latter part of October, 1895, the plaintiff, C. W. Viers, deposited five hundred dollars in the Taney County Bank and he drew the same out again about November 1, 1895. He purchased some land with it at a tax sale about that time. I know he bought the land for I stood by him when he bid the land in. This money was deposited in the name of C. W. Viers."

George L. Taylor, another witness for plaintiff said: "In the year 1895, I had an extensive correspondence with the defendant regarding the tax suit then pending against this land. The defendant employed me to look after the same and paid me fifty dollars for my services. The defendant did not attend the tax sale, but Mr. Viers was present and bid the land in under my supervision and instructions as attorney. Mr. Viers afterwards employed me to bring a suit in ejectment for the possession of this land, for which latter services I sued Mr. Viers and his wife by attachment in the circuit court of Taney county, and procured a judgment against both of them for $ 95."

The plaintiff then read from the deposition of Madison B. Viers, which was as follows, to-wit:

"State your name, age and place of residence? A. M. B. Viers twenty-eight years, Kiowa, Baker county, Kansas.

"Q. How long have you resided in Baker county, Kansas, and in the city of Kiowa? A. About eight months.

"Q. Where did you live before you moved to Kiowa, Kansas, and how long did you live there? A. Quincy, Illinois, between four and five years.

"Q. Where did you live on or about the 2d day of May, 1898? A. Quincy, Illinois.

"Q. Are you acquainted with C. W. Viers and Lillie M. Viers, if so, state what relation, if any, each of them are to you? A. Yes; C. W. Viers is my father, and Lillie M. Viers is my stepmother.

"Q. Is...