Baumgartner v. Guessfeld

• Decision Date: 31 March 1866
• Citation: 38 Mo. 36
• Parties: JAMES A. BAUMGARTNER, Defendant in Error, v. FREDERICK GUESSFELD et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

38 Mo. 36

JAMES A. BAUMGARTNER, Defendant in Error,

v.FREDERICK GUESSFELD et al., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1866.

Error to St. Louis Court of Common Pleas.

E. C. Kehr, for plaintiffs in error.

I. The infant defendants were not properly before the court; if so, all the proceedings against them are erroneous--Hendricks v. McLean, 35 Mo. 32.

a. Sheriff's return. There is no legal service upon the infant defendants. They should have been personally served, as directed by the first or second clause of § 7 of Art. V. of the Practice Act, and not by leaving a copy at their usual place of abode with a white person of their family over the age of 15 years, as is pretended to have been done in this case.

b. Sec. 8, Art. III. of Practice Act, p. 1220, R. C. 1855.

c. Latter clause of § 7 of “Act concerning guardians and curators -- R. C. 1855, p. 823. The general guardian is only permitted to defend for the minor in “matters committed to the care of such guardian.” Sec. 13 of same act, p. 824, gives the guardian “the charge, custody and control of the person of the ward, and the care of his education, support and maintenance.” The defence of this suit was not a matter committed to the care of this guardian, and hence a guardian should have been appointed, as provided by sec. 8, Art. III. of Practice Act, p. 1220.

II. The plaintiff's case as made by the petition:

a. The petition shows, if anything, an express, and not a resulting trust.

b. The petition fails to show when plaintiff's cause of action accrued; how and in what manner it accrued, and the particular fact by which a resulting trust is to be raised--Rob. Stat. Fr. 99; 2 Sto. Eq. 635-6.

III. Where a conveyance is made to one person, while the purchase money is paid by another, such fact may be shown by parol; and being established, the law implies a trust in favor of him who advances the money. (To be understood as modified by the propositions below.)

a. The only fact which can be established by parol is the payment of the purchase money by the beneficiary; and being established, the law, not the declaration of the parties, fixes the trust--Farrington v. Bar, 36 N. H. (5 Fogg) 86; Moore v. Moore, 38 N. H. 383, 388; Browne, Stat. Fr., 2d ed., § 91.

b. The evidence of this fact must be clear and satisfactory, and is to be received with great caution, especially after the death of the grantee, and yet more so after a long lapse of time--Browne Stat. Fr., § 91, 2d ed. In 2 Sugd. Vend. & Pur. 393, it is said, “In cases of this nature, the claimant should not delay asserting his rights, as a stale claim would meet with little attention.”--Noel v. Noel, 1 Clark, Iow. 423.

c. Where the proportion paid cannot be ascertained, or the sum paid is left uncertain, no trust results by operation of the law--Bro. Stat. Fr. § 86; 2 Sugd. V. & P. 908.

d. A resulting trust cannot be shown by proof of any declarations of the grantee that he holds the property in trust--Moore v. Moore, 38 N. H. 388-9; Graves v. Graves, 9 Foster, N. H. 142; 2 Washb. Real Prop. end of § 17, p. 176.

e. A resulting trust must arise, if at all, at the time of the co yance--2 Sugd. V. & P. 908, and may be rebutted or discharged by parol evidence-- Browne, § 92. (If plaintiff's cause of action exists at all, it arose Sept. 1, 1848, and July 10, 1849, dates of the two conveyances; his suit was brought 21st of March, 1862, in the one instance 13, in the other 14 years after.)

IV. The trust in the present case, if any, was one arising by the contract and agreement of the parties, and therefore an express trust.

a. No contract between the parties can create a resulting trust; but if it exists at all, it is an implication of law--Bro. Stat. Fr. § 84, p. 83, 7; Williams v. Brown, 14 Ills. 202; McElderry v. Shipley, 2 Md. 37.

b. Proof of an express trust, though by parol only, will cut off a resulting trust--Roberts, Fr. 100, 557; Bro. Fr., close of § 92, p. 90; 2 Sugd. V. & P. § 10, p. 395--6; Bellosis v. Compton, 2 Vern. Ch. 294; 2 Washb. Real Prop. 171; 1 Spenc. Eq. 496. (Where there is an agreement by the parties, there is no room for inference or presumption. A resulting trust can only arise where there is no agreement.)

Where there is an agreement, though by parol, that the nominal purchaser shall hold for the person from whom the consideration proceeds, this is not a resulting trust--Hubbard v. Goodwin, 3 Leigh, Va. 519; Ratcliffe v. Ellis, 2 Clark, Iowa, 59; Ring v. McCoun, 10 N. Y. 271; Sturtevant v. Sturtevant, 6 Smith, (20 N. Y.) 40; White v. Carpenter, 2 Paige, 238; Dow v. Jewell, 1 Foster, t. p. 489.

V. If there was an express trust, then the plaintiff cannot recover; for, though a trust need not be created in writing, yet, to take it out of the statute of frauds, it must be clearly proved in writing--Unitarian Soc. v. Woodbury, 14 Me. 281; Steere v. Steere, 5 Johns. Ch. 1; Lane v. Ewing, 31 Mo. 75.

E. T. Farish, for defendants in error.

I. This is a case of resulting trust, which is specially exempted by § 4 of “An act to prevent frauds and perjuries,” p. 807, R. C. 1855.

II. Where the consideration proceeds from two or more persons jointly, and the conveyance of the legal estate is taken in the name of one of them only, a resulting or presumptive trust immediately arises in favor of the parties not named in the conveyance, in proportion to the amount of the consideration which they may have respectively contributed. Hill Trust. 92; Wray v. Steel, 2 V. & B. 388; Riddle v. Emerson, 1 Vern. 108; Palmer v. Young, 1 Vern. 276; 2 Sugd. V. & P., 9th ed., p. 140.

III. Proof of such trust can be made by parol testimony--Hill, 94--6; O'Hara v. O'Neil, 2 Eq. Cas. Abr. 475; Cottington v. Fletcher, 2 Atk. 155; 2 Mad. Ch. Pr. 141, 3d ed.; Ambrose v. Ambrose, 1 P. Wms. 321; Leach v. Leach, 10 Ves. 517; Benbow v. Townsend, 1 M. & K. 508; Taylor v. Taylor, 1 Atk. 386; Madison v. Andrew, 1 Ves. 58; Boyd v. McLean, 1 J. C. R. 582; Bostford v. Burr, 2 J. C. R. 405; Buck v. Pike, 2 Fairf. Me. 24; Baker v. Vining, 30 Me. 121; Page v. Page, 8 N. H. 187; Snelling v. Utterback, 1 Bibb, 609; Letcher v. Letcher, 4 J. J. Marsh. 590; Elliot v. Armstrong, 2 Blackf. 441; Blair v. Bass, 4 Blackf. 590; Larkins v. Rhodes, 5 Porter, 196; Rider v. Kidder, 10 Ves. 364.

LOVELACE, Judge, delivered the opinion of the court.

This is an action in the nature of a bill in chancery to obtain a decree of title to one undivided half of certain lands described in the petition.

The petition states that Francis J. Baumgartner died seized and legally entitled to two certain pieces or parcels of land, situate in the county of St. Louis, and fully described in the petition, and also described in the deeds by which the land was conveyed to Francis J. Baumgartner. The petition then goes on to state, that since the date of these deeds to Francis J. Baumgartner, valuable improvements have been made upon the land, consisting of a brick store and known as the “Three-mile House.” Then, after referring to the fact of Francis dying intestate, and describing his heirs, the petition continues:

“Plaintiff further states, that though the conveyances to said Francis J. Baumgartner are absolute upon their face to said Francis J. Baumgartner, they are coupled with a secret trust in favor of the plaintiff; that, in fact, the property thus acquired was bought upon the joint account of said Francis J. Baumgartner and the plaintiff, each paying one-half of the consideration money thereof; and that the improvements were made jointly by said Francis and plaintiff, and were paid for equally by them, and that the said two parcels of land were held in trust to the extent of one equal and undivided half by said Francis for the use and benefit of plaintiff.”

The answer denies all the material allegations in the petition.

All the points made by the plaintiffs in error may be best considered under two heads: 1st, that the service was illegal as to the infant defendants; and, 2d, that the decree was for the plaintiff, when it should have been for the defendants.

I. With regard to the first--the infants were served by leaving copies of the writ at their usual place of abode with a white member of their family over the age of fifteen years. We see no distinction in the statute between the service upon an infant and upon an adult; nor do we see any reason for a distinction. The service is admitted to be such as would be good against anybody but an infant, and no authority is pointed out, nor is any good reason given, why it should not be good against the infant. The record shows that they appeared in court by their guardian, and made defense to the action. We think the service was good.

II. In Hill on Trustees, it is said, “where, upon a purchase of property, the conveyance of the legal estate is taken in the name of one person, while the...