Allen v. Drake

• Decision Date: 22 February 1892
• Citation: 19 S.W. 41,109 Mo. 626
• Parties: Allen, Appellant, v. Drake et al
• Court: Missouri Supreme Court

19 S.W. 41

109 Mo. 626

Allen, Appellant, v. Drake et al

Supreme Court of Missouri, First Division

February 22, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Alex. Martin and Hitchcock, Madill & Finkelnburg for appellant.

(1) The plaintiff became seized to her own use of the property in controversy on the fifteenth day of November, 1881, by virtue of the deed of M. Dwight Collier to her, delivered at that date. First. The fact that one person pays the consideration of a conveyance, while the title is taken in the name of another, is permitted to raise a resulting use in the one paying the consideration, while the party in whose name the title appears is converted into a dry trustee for his use. We have no desire to question this well-settled doctrine of the law of trusts. Second. But this doctrine applies only as between strangers. The trust which contradicts and overthrows the deed is raised only in favor of a stranger. Miller v Davis, 50 Mo. 572. When the payment is made by the husband of the grantee it operates only to confirm the use in the wife. Darrier v. Darrier, 58 Mo. 222; Gilliland v. Gilliland, 96 Mo. 522. The law says that the husband intended his wife should have the property as a gift, and that he paid for it to effect that intent. No actual evidence of a gift is required. Siebold v Christman, 75 Mo. 308. Third. This intent is not a conclusive one. It may be rebutted by competent parol evidence proving a contrary intent. The evidence, however, must be of the most definite and satisfactory character, because the effect of it is to raise a resulting use in behalf of a person who is not a party to the deed to make a new deed in place of the old one. Ringo v. Richardson, 53 Mo. 396; Rogers v. Rogers, 87 Mo. 257; Kennedy v. Kennedy, 57 Mo. 76; Forrester v. Moore, 77 Mo. 651; Shaw v. Shaw, 86 Mo. 594. Fourth. If the declarations and acts of the husband do not clearly indicate some other purpose than a gift the presumption of the law must prevail, and his wife must have the property according to the plain language of the deed, where he pays for real estate, and has the title put in the name of the wife. (2) The conveyance to George L. Allen, and the conveyance of George L. Allen to Gerard B. Allen are void in equity. Mrs. Allen, being the owner of property of the value of $ 51,000, parts with this property by transfer to her husband for the nominal consideration of $ 1. The title thus acquired by him was presumptively acquired by exercise of the influence possessed by him over her as husband, and is avoidable at the option of the wife. Boyd v. De La Montagnie, 73 N.Y. 498; Smyley v. Reese, 53 Ala. 89; Darlington's Appeal, 86 Penn. 512; Pennington v. Acker, 1 George (Miss.) 161; Allen v. Adams, 7 George (Miss.) 640; Dyer v. Williams, 62 Miss. 302; Stiles v. Stiles, 14 Mich. 74. It has been held that, if the relation of guardian and ward exists, a voluntary gift or grant by the ward during its existence or on reaching his majority raises the presumption of undue influence, which avoids the grant or gift, and that the burden of rebutting this presumption is upon the guardian or those claiming an advantage by the gift or grant. Garvin's Adm'r v. Williams, 44 Mo. 465; Garvin's Adm'r v. Williams, 50 Mo. 206; Bridwell v. Swank, 84 Mo. 455. In all similar relations of confidence, trust or superior dominion this rule has been enforced. Todd v. Grove, 33 Md. 188; Presley v. Kemb, 16 S.C. 334; Gibson v. Jeyes, 6 Ves. 266; Caspari v. Church, 82 Mo. 649; McClure v. Lewis, 72 Mo. 314. To make out a case of undue influence for the plaintiff it is only necessary to prove three things: First, the relation; second, the opportunity to exercise undue influence; third, the transfer by the wife of a valuable estate to the husband for nothing.

Boyle, Adams & McKeighan and S. N. Holliday for respondents.

(1) The Collier deed was never intended as a gift from Mr. Allen to Mrs. Allen. First. Whether or not it was so intended is a matter of pure intention (irrespective of any presumption to that effect), to be gathered from the facts and circumstances of the transaction and by the res gestae. Darrier v. Darrier, 58 Mo. 222; Creed v. Bank, 1 Ohio St. 10; 1 Perry on Trusts [2 Ed.] secs. 146, 147, pp. 163-4; Proseus v. McIntire, 5 Barb. 432; Butler v. Ins. Co., 14 Ala. 777; Handy v. Johnson, 5 Md. 463; Harriman v. Stowe, 57 Mo. 96. Second. Mr. Allen being relieved by contract of the obligation to make provision for Mrs. Allen, and there being no necessity for any such provision, by reason of the fact that Mrs. Allen was otherwise well provided for, the presumption of the deed being intended as a gift is thereby overcome. 1 Washburn on Real Property [4 Ed.] star p. 146; 2 Pomeroy on Equity Jurisprudence [Ed. 1882] sec. 1039, p. 611; Atherly on Marriage Settlements, 477. Third. The facts of the case, when analyzed, show that Mr. Allen's original intent was not to make a gift, but, as the agent of his wife, to make an investment for her, and to use her own resources in paying for the same. Fourth. The testimony of witness Turner, as to his "impression," is too vague and uncertain to be of any value in determining Mr. Allen's intent. Modrell v. Ridell, 82 Mo. 36; Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 385. Fifth. Plaintiff's argument on this point, analyzed and criticized. Sanderlin v. Sanderlin, 24 Ga. 587. (2) If the gift was originally contemplated by Mr. Allen (which, for reasons hereinbefore stated, we deny), it was never perfected; before the transaction was closed he determined otherwise. There was no consummation of the gift, as such, between Mr. and Mrs. Allen, by any delivery thereof to Mrs. Allen, or by any other acts equivalent to a delivery. 1 Parsons on Contracts [6 Ed.] star p. 234; 28 W.Va. 341; 5 Ves. 78, and cases cited under point 1; Creed v. Bank, supra; Schick v. Grote, 42 N.J.Eq. 352; Dilts v. Stevenson, 2 C. E. Green, 407; 1 Perry on Trusts [2 Ed.] secs. 146, 147; Butler v. Ins. Co., 14 Ala. 777; Handy v. Johnson, 5 Md. 463; Harriman v. Stowe, 57 Mo. 96; Phillips v. Phillips, 50 Mo. 606; Tobin v. Bass, 85 Mo. 657; Burke v. Adams, 85 Mo. 504; Wilcoxon v. Osborn, 77 Mo. 629; Fountaine v. Savings Inst., 57 Mo. 552. (3) There was no fraud or undue influence practiced by Mr. Allen upon his wife, in securing the execution of the quitclaim deed by her to George L. Allen. The facts of the case, when fully considered, show that no undue influence was used, and any possible technical presumption to that effect is overthrown by the facts and circumstances attending the conveyance, as disclosed by the evidence. Clark v. Edwards, 75 Mo. 89; Webb v. Webb, 87 Mo. 541; Mays v. Pryce, 95 Mo. 611-12; Steffen v. Bauer, 70 Mo. 401; Sharp v. McPike, 62 Mo. 300; Belo v. Mayes, 79 Mo. 67; Wanell v. Kem, 57 Mo. 478. (4) But there is no presumption of undue influence on the part of the husband arising out of the mere fact that the wife conveys property to him for a nominal consideration. Sharp v. McPike, supra; Clark v. Edward's Adm'r, supra; Huguenin v. Basely, 2 Leading Cases in Equity, p. 1215; 14 Ves. 273; Orr v. Orr, 8 Bush, 156; Hardy v. Van Harlingen, 7 Ohio St. 216; Golding v. Golding, 82 Ky. 51; Stiles v. Stiles, 14 Mich. 74; McClure v. Lewis, 73 Mo. 324. Plaintiff's cases on this point considered. (5) Plaintiff's equity is, at best, obscure, uncertain and doubtful; the very pith and substance of the transaction (notwithstanding technical presumptions) are honest, just and fair; no equity whatsoever is proved, and especially the particular fraud charged in the petition is not proved. Under such circumstances, or either of them, equitable relief cannot be granted to the plaintiff. 42 N. J. Eq., supra; Forrester v. Scoville, 51 Mo. 268; Jackson v. Wood, 88 Mo. 76; Briant v. Jackson, 99 Mo. 585, 596; Webb v. Darby, 94 Mo. 621; Pomeroy v. Benton, 57 Mo. 531; Hart v. Railroad, 65 Mo. 509. (6) Plaintiff failed to prove the case, made by her amended petition, and for this reason, also, her petition was properly dismissed. Plaintiff cannot sue on one cause of action and recover on a totally different one.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

This is a proceeding in equity to set aside two deeds.

The material allegations of the petition are as follows:

"Your petitioner, Eugenia L. Allen, plaintiff, complains of," etc., and says: "That on the eleventh day of July, 1871 she was married to Gerard B. Allen, now deceased; that afterwards, by virtue of the deed of M. Dwight Collier to herself dated October 8, 1881, recorded in book 661, page 570, she became seized and possessed in her own right of the following described real estate in the city of St. Louis, situated in block 89, being the northwest corner of said block, containing twenty-six feet, nine inches front on the east line of Fourth street, by a depth along the south line of Vine street one hundred and five feet, which property is now occupied by a tenant operating a dollar store, and which property in 1881 was of the value of $ 51,000, and is of that value or more at the present time; that a few weeks after the acquiring of said property as aforesaid her said husband requested of your petitioner that the title to said property be conveyed to and vested in himself, stating at the time that his object for such change of title was for the sole purpose of more conveniently selling and converting the same into other property and securities for the use and benefit of your petitioner. Your petitioner says that her said husband was a man of imperious will and positive convictions, and that he had such personal influence over your petitioner that his request aforesaid was equivalent to a command, which she felt it to be her duty...