Belfast Inv. Co. v. Curry

• Decision Date: 30 March 1915
• Docket Number: No. 16821.,16821.
• Citation: Belfast Inv. Co. v. Curry, 264 Mo. 483, 175 S.W. 201 (Mo. 1915)
• Parties: BELFAST INV. CO. v. CURRY et al.
• Court: Missouri Supreme Court

175 S.W. 201

264 Mo. 483

BELFAST INV. CO. v. CURRY et al.

No. 16821.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by the Belfast Investment Company against Catherine Curry and others. Judgment for the defendants, and plaintiff appeals. Affirmed. "

Action to establish resulting trust, to recover dower in real estate, and for an accounting. Defendants had judgment below, and the plaintiff appeals.

Before giving a résumé of the pleadings, we will recite a history of the title and possession of the real estate in controversy. On May 8, 1885, one Thomas Griffin died in Kansas City, Mo., seised of the title to lot 1 in block 3 in McGee place, an addition to said city, which lot possessed a small rental value. Thomas Griffin left a widow and several brothers and sisters surviving him, but no lineal heirs. Neither he nor his wife ever occupied the lot in controversy as a home.

The widow of said Thomas Griffin married one Alfred Barrell in 1888, and located in Los Angeles, Cal., where she has ever since resided. Mrs. Barrell testified that shortly after the death of her first husband, Thomas Griffin, she expended $60 for improvements on the lot in controversy. She further testified that she then gave the title papers of the lot to her brother-in-law, William Griffin, with a request that he rent the property and look after it for her. William Griffin engaged one Donnelly to rent out the lot. In May, 1889, Donnelly turned the possession of the lot over to Fred C. Hey, public administrator, together with $86.50 collected as rent. Mr. Hey, formerly public administrator, testified: That William Griffin was the only relative of Thomas Griffin living in Kansas City; his other collateral heirs residing in the East That said William Griffin was very friendly to the widow, Mrs. Barrell, and expressed a desire that she should have the lot. Said William Griffin was dead at the time of the trial.

The administrator. Mr. Hey, made final settlement of the estate of Thomas Griffin in August, 1891. Said settlement showed that on July 1, 1891, he paid $100 of said rents to the widow, Mrs. Barrell. At the close of his administration he turned over the possession of the lot to one George Kumpf, together with a balance in his hands amounting to $66.08. The settlement indicates that he did not, while administrator, receive any moneys, except rents from the lot in controversy, together with the amount turned over to him by Mr. Donnelly. No exceptions were filed to his final settlement.

It does not appear that Kumpf had any lawful authority to assume control of the lot. He says he took charge of the lot and the $66.08 balance in the hands of the administrator because the administrator was in trouble, and he (Kumpf), having signed his bond, did not want him to get in any deeper. Mr. Kumpf continued to collect rents on the lot in controversy until about 1905 or 1906, when, upon the advice of his attorney, he paid such rent over to the "heirs of Thomas Griffin." He did not know, or could not remember, who those heirs were, but understood that the amount he paid ($394) was needed to purchase or extinguish some tax claims outstanding against the property. Mr. Kumpf further testified that he was under the impression that one Almena A. Archer pretended to be agent for the Griffin heirs. Mrs. Archer was not sworn. The evidence indicates that for several years she rented the property from Kumpf, but there is nothing in the record by which her agency for the Griffin heirs or the widow of Griffin was satisfactorily proven.

Taxes were allowed to become delinquent on the property in controversy for the years 1899 and 1901, for which tax deeds were issued by the treasurer of Kansas City to one F. N. Phelps, dated November 11, 1903. A tax deed was also issued on October 27, 1903, by said treasurer of Kansas City, purporting to convey said property to the Standard Investment Company for taxes of the year 1898. On October 29, 1906, F. N. Phelps brought an ejectment suit against Mrs. Archer, as tenant of the lot in controversy, in which suit Mrs. Barrell, formerly the widow, and the unknown heirs of Thomas Griffin, were made parties defendant. In August, 1907, after the filing of the Phelps suit, one A. N. Adams, an attorney of Kansas City, made a contract with the collateral heirs of Thomas Griffin to protect them against the Phelps suit, for which he was to receive one-half of whatever money or land he might recover for them.

After getting this contract of the collateral heirs, Mr. Adams made a deal with Phelps and the Standard Investment Company whereby they agreed to surrender their respective tax titles in consideration of $394 rent money collected by Mr. Kumpf. Upon receipt of this rent money, Mr. Adams caused one-half of the tax titles to be conveyed to himself, and the remainder thereof to the collateral heirs of Thomas Griffin. He also received a deed from the collateral heirs, purporting to convey to him one-half of their interests. A very short time before making his contract with the collateral heirs of Thomas Griffin, Attorney Adams wrote the following letter to Mrs. Barrell, formerly the widow of Thomas Griffin:

                        "Aug. 9, 1907
                

"Mrs. Mary E. Barrell, Los Angeles, California—Dear Madam: I have been informed that you are the widow of Thomas Griffin, deceased. As you probably know Thomas Griffin was the owner of lot 1. block 3, McGee place, an addition in Kansas City, Missouri. I have been corresponding with the heirs of Thomas Griffin concerning this estate. They cannot give me any information of your whereabouts, but I find from the papers in the administration of the estate of Thomas Griffin that you were, at the time of final settlement, residing in (San Francisco) Los Angeles, California. This lot has been sold for taxes, and the purchaser at the tax sale is now endeavoring to perfect his title. By immediate action I think something can be saved for you as the widow, and for the heirs of Thomas Griffin. Will you kindly write me at once upon receipt of this letter and let me know where you are and I will explain matter further.

"Very respectfully yours, A. N. Adams."

To this letter Mrs. Barrell replied as follows:

"121 N. Avenue 24, Los Angeles, Cal.

                      "August 14, '07
                

"Arthur N. Adams, Esq., Kansas City, Mo.— Dear Sir: Yours of the 9th inst. rec. and contents noted. In reply will say that I was the widow of Thos. Griffin and am well aware of the fact that we did own the lot you have described, in Kansas City, at 18th and Cherry street. Several years ago, when I married my present husband, it appears that Mr. Griffin's folks got angry and tried to keep me from getting the place, so I gave it up and have not bothered about it any since. I thought if they needed it any worse than I did they could have it. Would be pleased to know what became of the place and how many, of Mr. Griffin's heirs are still looking for it. Awaiting your reply, I am.

"Very respectfully,            Mary E. Barren."
                

Mr. Adams claims to have replied to Mrs. Barrell's letter, but no copy of such a reply was introduced in evidence.

In April, 1909, one James E. Faris, representing the plaintiff (Belfast Investment Company), called upon Mr. Adams with a view of purchasing the land in controversy. Adams informed Mr. Faris of his deed from

the collateral heirs, and likewise his deed from the holders of the tax titles, and offered to sell his interest to the plaintiff company for $1,500. Mr. Adams loaned Mr. Faris an abstract of title to the lot and called his attention to the fact that Mrs. Barrell had written a letter which he (Adams) had interpreted to mean that she disclaimed any interest in the lot in controversy. After holding the abstract some four hours, Mr. Faris, for the plaintiff company, refused to accept Mr. Adams' offer.

On June 17, 1909, the plaintiff, through an agent, purchased all Mrs. Barrell's title to the lot in controversy, paying therefor $700, and receiving a quitclaim deed. Thereafter, on September 7, 1910, the plaintiff instituted this action against A. N. Adams and his codefendants; such codefendants being the collateral heirs of Thomas Griffin, deceased. In the second amended petition upon which the trial below was had, it was averred that the lot in controversy was purchased by Thomas Griffin and his wife, Mary E. Griffin (now Mary E. Barrell), in the year 1880, each of them contributing one-half of the purchase price, and that the legal title was taken in the name of said Thomas Griffin under a contract that an undivided half thereof would be held in trust by him for his wife. Said petition also averred the purchase by plaintiff of all the title of said Mary E. Barrell, and prayed that the title to said lot be tried and determined, that all the title held by said Mary E. Barrell be declared vested in plaintiff, and that an accounting be had upon the rents received by defendants and on moneys paid out by them for taxes and the purchase of tax titles, and for all other proper relief.

The answer, in addition to a general denial, pleaded the ten-year statute of limitation. The answer also set up certain alleged equitable defenses, which, for the purposes of this opinion, it is not necessary to describe here.

Such other facts as may be found necessary to make clear the issues in this cause will be recited in connection with our conclusions.

New & Krauthoff, P. E. Reeder, and Maurice H. Winger, all of Kansas City, for appellant. A. N. Adams and Scarritt, Scarritt, Jones & Miller, all of Kansas City, for respondents.

I. Resulting Trust.

BROWN, J.

(after stating the facts as above). [1] Mrs. Barrell, testifying for plaintiff, stated that the lot in controversy was purchased shortly after her marriage to Thomas Griffin, and that she contributed part of the purchase money, but she does not say how...