Boston v. Murray

• Decision Date: 20 February 1888
• Parties: Boston et al., Appellants, v. Murray
• Court: Missouri Supreme Court

7 S.W. 273

94 Mo. 175

Boston et al., Appellants, v. Murray

Supreme Court of Missouri

February 20, 1888

Appeal from Greene Circuit Court. -- Trial before Hon. M. G McGregor, Judge of the Fifteenth Judicial Circuit.

Affirmed.

F. S Heffernan for appellants.

(1) The deeds in evidence to S. H. Boyd, "as commissioner for Charlotte Coleman," is simply a deed to S. H. Boyd, as trustee for Charlotte Coleman, a married woman, terminating at his or her death. Roberts v. Mosely, 51 Mo. 283. The land was owned by Charlotte Coleman, and after her death became liable for her debts. Bowen v. McKean, 82 Mo 594; Shaw v. Shaw, 86 Mo. 594. (2) Should the deeds be construed to be conveyances to S. H. Boyd, and as it is admitted that the money was Charlotte Coleman's, it created a resulting trust in Boyd to the use of Charlotte Coleman. Siebold v. Christman, 7 Mo.App. 254; Persons v. Persons, 25 N.J.Eq. 250, 259; Dudley v. Bosworth, 10 Humph. 9; Sidmouth v. Sidmouth, 2 Beav. 447; Perry on Trusts, sec. 147; Story's Eq. Jur., sec. 122; Baker v. Railroad, 86 Mo. 75; Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Hill on Trusts, 522; Kennedy v. Kennedy, 57 Mo. 73. (3) A judgment at law against a married woman is void, and an execution sale under it conveys no title. St. Louis v. Bernoudy, 43 Mo. 552; Higgins v. Peltzer, 49 Mo. 152; Caldwell v. Stephens, 57 Mo. 589; Wernecke v. Wood, 58 Mo. 352. (4) Can only be reached in equity. 53 Mo. 380; 62 Mo. 417; 66 Mo. 617; 64 Mo. 138. (5) A judgment against a married woman in personam is a nullity. Gage v. Gates, 62 Mo. 412; Lincoln v. Rowe, 64 Mo. 138; Weil v. Simmons, 66 Mo. 617. (6) In an action on a special tax bill against a married woman judgment is void. Corrigan v. Bell, 73 Mo. 53-57. (7) Parol contemporaneous evidence is inadmissible to try the terms of a valid written instrument. 1 Greenleaf Evid., p. 321, sec. 275; 2 Phillips Evid., 644, and note 487; Koerhing v. Muemminghoff, 61 Mo. 403; Jennings v. Brizeadine, 44 Mo. 332; Helmrides v. Gehrke, 57 Mo. 79; Greene v. Gates. 73 Mo. 115; Sensenderfer v. Smith, 66 Mo. 80; Henshaw v. Dutton, 59 Mo. 139. (8) An express trust can be created only by writing. 73 Mo. 116; R. S., sec. 807

Jas. R. Vaughan and T. J. Murray for respondent.

(1) In ejectment recovery can be had only upon a legal title. Ejectment could not be maintained upon appellants' title. Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106. (2) The legal title was in Boyd as trustee, prior to his conveyance to the defendant, with the equitable title in Charlotte Coleman for and during her natural life, as a separate estate, with the remainder in her heirs. The deeds by Berry and Woodward convey a legal estate to him unaffected, on the face of the deeds, with any trust. The word, commissioner, or commissioner of Charlotte Coleman, is appended to his name, but is only descriptio personoe, and the court will notice that the habendum in each deed is to "S. H. Boyd, his heirs and assigns." Thornton v. Rankin, 19 Mo. 193; Eyerman v. Bank, 13 Mo.App. 289. (3) The trust in this case was an implied trust and it was proper for defendant to introduce evidence to show whose money paid for the land, the power and duties of the trustee as to its investment, the full nature of the trust, and the beneficiaries of the trust property. Peacock v. Nelson, 50 Mo. 257. (4) The deed by the sheriff under the suit for back taxes was not void. R. S., sec. 6837; Gitchell v. Messmer, 87 Mo. 131. (5) The tax deed was properly admitted in evidence. Davis v. Smith, 75 Mo. 219. (6) There was no evidence admitted upon the trial on account of which the case should be reversed. (a) Because upon the trial any valid objections appellants may have had to such evidence were waived by a failure to make specified objections. Corrister v. Railroad, 25 Mo.App. 627; Margrave v. Ausmus, 51 Mo. 561; Johnson v. Railroad, 22 Mo.App. 579. (b) It is immaterial that improper evidence was admitted, if there was competent evidence to sustain the finding, and it is quite obvious that if any such evidence was admitted it did not induce the finding. Moore v. Mountcastle, 72 Mo. 605; Father Matthew Society v. Fitzwilliams, 84 Mo. 406; Erwin v. Ins. Co., 24 Mo.App. 145.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This suit is by ejectment to recover the possession of certain lands in Greene county. The plaintiffs, in support of their title, put in evidence an administrator's deed which purported to convey to plaintiffs the interest of one Charlotte Coleman. The plaintiffs also put in evidence two deeds, one from John T. Berry and one from W. W. Woodward, conveying the land in controversy to S. H. Boyd, commissioner for Charlotte Coleman. It was also shown that said Charlotte Coleman entered into the possession of said lands in August, 1871, and occupied them until her death, in January, 1881, and that her husband died in March, 1884.

Defendant, in support of his title, put in evidence deeds from the heirs of said Coleman conveying to him the lands in suit; also a quit-claim deed from said S. H. Boyd conveying all his interest to defendant. Defendant also introduced in evidence the proceedings in the chancery court of Maury county, Tennessee, had on the twenty-seventh of March, 1846, in a suit entitled, John Bingham and others v. Samuel M. Majors et al., heirs of Samuel Majors, Sr., the object of which suit was to partition certain lands and slaves, formerly of the estate of said Majors, Sr., the father of Charlotte Coleman, and in this suit certain lands were set apart to said Charlotte, "to have and to hold, to her sole and separate use, free from the control of her husband," subject, however, to the claim of one William W. Coleman, who claimed a mortgage lien on the land set apart for her. Afterward, this matter of the mortgage lien was settled between the said Wm. W., Charlotte, and Thomas C. Coleman, her husband, and they all jointly conveyed the land to one William J. Strayborn, as trustee for said Charlotte, "for the sole use and benefit of said Charlotte, free from the control of her husband, the said Thomas C., and subject to the sole use and benefit of the said Charlotte, but only so far as to the use; but the said Charlotte is to have no power to dispose of the same by any conveyance during her life, and to descend to her children and their representatives then surviving at her death. To have and to hold to said Wm. J., forever, as such trustee." This settlement and conveyance was reported and approved by said chancery court. These proceedings were recorded in the recorder's office of Greene county, in this state, on the tenth of June, 1857.

Afterwards in 1861, a suit was brought in said chancery court, by Thomas C. Coleman and his wife, Charlotte, against James A. Coleman et al., who were the trustees and heirs of said Charlotte, and the land so deeded to said Strayborn was ordered to be sold for the purpose of reinvestment, and in the same cause, at the March term, 1861, it was ordered that S. H. Boyd and Sample Orr be appointed commissioners to enquire into the propriety of investing said moneys in Missouri lands, and that said commissioners make full report as to any purchase agreed upon by Mr. Coleman, and report whether the tract of land so agreed to be purchased is a suitable investment for Mrs. Coleman and her children, the quantity, etc., and other facts tending to show whether the investment is to the interest of said parties, and, in said proceeding in the chancery court, entitled Thomas C. Coleman and wife against James A. Coleman et al., relating to the funds which were used...