Blair v. Blair

• Decision Date: 24 December 1912
• Citation: 152 S.W. 1,247 Mo. 61
• Parties: JOHN H. BLAIR, Appellant, v. ANNIE E. BLAIR
• Court: Missouri Supreme Court

152 S.W. 1

247 Mo. 61

JOHN H. BLAIR, Appellant, v. ANNIE E. BLAIR

Supreme Court of Missouri, First Division

December 24, 1912

Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.

Affirmed.

Joseph H. Blair pro se.

(1) Appellant paid the purchase money for the land, and thereby a resulting trust arose in his favor. The presumption in favor of an advancement where the land is paid for by the husband and conveyance is made to the wife, is a presumption of fact and not of law, and may therefore be rebutted by evidence showing that at the time of the conveyance it was the intention of the husband that the wife should not take a beneficial interest. Price v. Kane, 112 Mo. 412; Darrier v. Darrier, 58 Mo. 222; Hall v Hall, 107 Mo. 109; Siebold v. Christman, 7 Mo.App. 254; Viers v. Viers, 175 Mo. 444; Case v. Espenscheid, 169 Mo. 215; Curd v. Brown, 148 Mo. 82. And where the wife at the time of the conveyance agrees to hold the property in trust for the husband, who advanced the purchase money, this negatives the presumed intention on which the presumption rests, and a resulting trust arises in favor of the husband. 15 Am. & Eng. Ency. Law (2 Ed.) 1157. And the fact that the husband took possession of the land, improved it, and paid the taxes thereon is some evidence of his original intention that the purchase should be in trust for him. Smith v. Strahan, 16 Tex. 314; Maxwell v. Maxwell, 109 Ill. 588; Fery v Morrison, 159 Ill. 244; Scott v. Calladine, 79 Hun (N.Y.), 79. (2) A party whose money is used in the purchase of land, with or without his consent, becomes the equitable owner thereof. McMurray v. McMurray, 180 Mo. 526; Siling v. Hendrickson, 193 Mo. 365. And although the deed be taken in the name of another, a resulting trust is created in favor of the party furnishing the purchase money. Plumb v. Cooper, 121 Mo. 668; Condit v. Maxwell, 142 Mo. 226. And this is so though the title is taken in the name of the grantee with the consent of the person paying the consideration, and though he drew the deed in the name of the nominal grantee himself, and had it placed on record. Condit v. Maxwell, 142 Mo 275; Lewis v. Wells, 85 F. 896; 15 Am. & Eng. Ency. Law (2 Ed.), 1137; Wrightsman v. Rogers, 239 Mo. 417. (3) Resulting trusts may be established by parol evidence. Smith v. Smith, 201 Mo. 545; Heil v. Heil, 184 Mo. 666; Brinkman v. Sunken, 174 Mo. 709; Garrett v. Garrett, 171 Mo. 155; Pitts v. Weakley, 155 Mo. 109. (4) A resulting trust may be established for a proportional part of the land according to the amount paid by the one claiming a resulting trust, and he may have a proportional part of the land set off to him, or the court may render a decree for his proportional share in the land. Crawford v. Jones, 163 Mo. 594. (5) There were practically two judgments in the divorce suit between Annie E. Blair and J. H. Blair, the parties to this suit. One, the judgment of divorce, and the other the judgment as to alimony. The amount of the judgment that should be rendered depended on the property that each party owned, the earning capacity of the defendant in that case, and the property he had given her. Blair v. Blair, 131 Mo.App. 571. Appellant admitted in that case that respondent was the legal owner of the land here in controversy, but claimed that he was the beneficial owner because he had paid the purchase money for the land, and the respondent claimed to be the legal and beneficiary owner because she had paid the purchase money for the land. The St. Louis Court of Appeals in its finding of the facts in that case, found and adjudged that the appellant had paid the consideration, $ 3500, for the land. This was a final and conclusive adjudication of that fact, which was made an issue in every one of the pleadings, and the evidence, and it cannot again be relitigated, as between the parties, in this or any other proceedings. That question of fact was a material issue in that case and was decided upon its merits. Sec. 2375, R.S. 1909; Womack v. St. Joseph, 201 Mo. 490; State ex rel. v. Branch, 134 Mo. 592; 24 Am. & Eng. Ency. Law (2 Ed.), 765, 710; Mason v. Summers, 24 Mo.App. 174; Williams v. Iron Co., 30 Mo.App. 662.

L. G. Blair and J. D. Hostetter for respondent.

(1) Where the husband purchases real estate with his own funds and causes the same to be conveyed to his wife, a prima-facie case is made out that the husband intended the conveyance to be a provision or settlement for the wife and not a resulting trust. This presumption, of course, can be overcome, but in order to do so the evidence must be clear, strong and unequivocal and so definite and positive as to leave no room for doubt in the mind of the chancellor. Viers v. Viers, 175 Mo. 453; Case v. Espenscheid, 169 Mo. 215; Curd v. Brown, 148 Mo. 82; Woodward v. Woodward, 148 Mo. 246; Schuster v. Schuster, 93 Mo. 438; Darries v. Darries, 58 Mo. 226; Derry v. Fielder, 216 Mo. 192; Mondrell v. Riddle, 82 Mo. 31; Rogers v. Rogers, 87 Mo. 257. (2) There can be no resulting trust in this case, conceding the facts to be as claimed by Blair in his testimony. He pleads a verbal agreement and relies on it in his testimony. Now if the alleged verbal agreement, which he testified to as having been made between himself and his wife, had been in writing it would have constituted an express trust as distinguished from a resulting trust. Not being in writing it can not be enforced as an express trust. The terms of the alleged verbal agreement show that it was not a resulting trust, but rather an ineffectual attempt to create an express trust. An express trust is void unless manifested in writing as required by the statute. Heil v. Heil, 184 Mo. 673; Crawley v. Crafton, 193 Mo. 431. (3) Plaintiff's cause of action is barred by the ten-year Statute of Limitations which runs against a resulting trust. Reed v. Painter, 145 Mo. 356; Landis v. Saxton, 105 Mo. 486; Hudson v. Calhoun, 193 Mo. 547. (4) The judgment of the St. Louis Court of Appeals in the divorce case was not an adjudication of the title to the property in controversy, nor was it an adjudication as to the question as to who paid for the property in controversy so as to shut out the inquiry in the case at bar. The title to the farm in controversy was not in issue in the divorce case, and necessarily by reason of the nature of the suit could not be an issue. It was outside the province of the court in the divorce case to settle anything other than the issues which arose in that case. In the determination of the divorce case the court had no power to divest title as to the property in controversy, or to invest either of the litigants with title to any specific property. The property which each owned was scheduled only for the purpose of enabling the court to determine the amount of alimony which should be allowed to the wife or whether or not any alimony at all should be allowed. The question as to who paid for the farm in controversy was not in issue in the divorce case, but if in issue at all it was only collaterally so. Gwin v. Waggoner, 116 Mo. 151; Hennessy v. Brewing Co., 145 Mo. 115.

OPINION

GRAVES, P. J.

Action by plaintiff to divest defendant of the record title to 100 acres of land in Pike county, in value at the present time of $ 5000 to $ 6000. Petition in three counts. The first count avers that the plaintiff paid for the land in question with his own funds, and seeks to have a resulting trust declared. By the second count an express agreement is alleged by the terms of which it is stated that the defendant took the title agreeing to hold the same for the use and benefit of the plaintiff. By the third count a receiver is asked for the property.

In appropriate answer the defendant joined issue on all the matters averred in plaintiff's petition, and as a further defense invoked the ten-year Statute of Limitations. Defendant also answered to the effect that the purchase price of the land in question was paid out of her individual and separate funds, and that she was in fact and in law the legal owner thereof.

By reply the plaintiff pleaded that there had been an adjudication of the fact as to whose money was used in the payment for the farm in the case of Blair v. Blair, 131 Mo.App. 571, 110 S.W. 652. A reading of that case will throw some side light upon the present, and obviate a lengthy detail of many things in this case. Upon a hearing nisi the chancellor found against the plaintiff and dismissed his bill, from which judgment of dismissal and costs, he has appealed. There are but two real questions in the case:

(a) Is the plea of former adjudication good?

(b) Whose money paid for this land?

Of these in their order.

I. The question of res adjudicata in this case is thus situated. In 1905 the defendant in this case, Annie E. Blair sued the plaintiff in the present suit, Joseph H. Blair, for divorce, and as an incident thereto asked for alimony. In July, 1906, the circuit court of Pike county heard this divorce proceeding, and entered its decree granting to Annie E. Blair a divorce from Joseph H. Blair, and also giving her alimony in gross in the sum of $ 2200 and fifteen dollars per month for the support and maintenance of two minor children. From this decree Mr. Blair appealed to the St. Louis Court of Appeals, and in that court the alimony in gross was, for reasons in the opinion stated, reduced to $ 1000, and with this modification affirmed. Appellant's idea of res adjudicata seems to spring from a certain state of the record in the divorce suit. In the petition for divorce, evidently inserted on the idea of giving the court a basis for fixing alimony, Annie E. Blair used this language: "Plaintiff states that her property consists of the residence property in Bowling Green, and one hundred...