Brown v. Turner

• Citation: 20 S.W. 660,113 Mo. 27
• Parties: BROWN et al. v. TURNER et al.
• Decision Date: 13 December 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 660

113 Mo. 27

BROWN et al. v. TURNER et al.

Supreme Court of Missouri, Division No. 2.

December 13, 1892.

DESCENT — PERSONALTY — HOUSE BUILT ON ANOTHER'S LAND — PARTIES — RESULTING TRUST.

1. In a proceeding in equity by the heirs of a decedent to recover a dwelling house, the petition contained the averments that the lot on which the house in question stood was the property of defendant, and the house was the property of plaintiff's decedent, which at her death passed to them as her heirs. Held, that by these averments the house is personal property, which passes to the administrator of plaintiff's decedent, who alone has the right of action.

2. A resulting trust is not created where a husband builds a house on his own land with money contributed by his wife under an agreement with her that the house is to be her property.

Appeal from St. Louis circuit court.

Proceeding in equity by William H. Brown and others against Thomas Turner and another to recover a dwelling house. From a judgment sustaining a demurrer to petition, plaintiffs appeal to the St. Louis court of appeals. Certified to the supreme court. Affirmed.

Stone & Slevin, for appellants. Lee, McKeighan, Ellis & Priest and Gustave L. Stern, for appellees.

GANTT, P. J.

This is a proceeding in equity by the heirs at law of Mrs. Margarite Turner against Thomas Turner, her surviving husband, and John Bird, for the recovery of a certain dwelling house in the city of St Louis. The petition recites that Mrs. Turner died June 5, 1889, leaving plaintiffs as her sole heirs at law; that prior to her death, and in the year 1889, she had received from the Ancient Order of United Workmen $1,500, the proceeds of a benefit certificate, of which she was the beneficiary, upon the life of her brother, John Green; that Thomas Turner was the husband of said Margarite Turner, and was prior to June 5, 1889, the owner of the two lots in the city of St. Louis, described in the petition; "that a short time after said Margarite Turner received said $1,500 she delivered the same for safekeeping to defendant Thomas Turner, who thereafter, with the consent and under the direction of said Margarite, invested the same, for and in her behalf, in the erection of a dwelling house upon one of said lots, thereinbefore described; that all of said $1,500 entered into and was expended by said Turner in the erection of said dwelling, and no other money was used therein, save $200 contributed thereto by said Thomas Turner. They allege, further, that said $1,500 was the separate property of said Margarite, and prior to her death had never been reduced to possession by her said husband; that, at the time of the erection of said house, it was understood and agreed between said Margarite Turner and defendant Thomas Turner that said dwelling house should be and was the property of said Margarite, although title thereto seemed and was permitted to remain in said Thomas by reason of his ownership of the lot upon which it was erected." Plaintiffs then allege that upon her death the title to said house vested in them as heirs at law and tenants in common. They then charge that on 10th of June, 1889, said Thomas, to defraud them, conveyed said lot to defendant John Bird, and charge notice of the fraud upon said Bird. They ask that Bird's deed be set aside; that they be declared owners of said property; that said Thomas be declared a trustee for plaintiffs, and, as such, be ordered to sell the same lot, or so much as is necessary to pay plaintiffs $1,500 and their costs. Defendants demurred to this petition (1) because it did not state facts sufficient to constitute a cause of action; and (2) that there is a defect of parties plaintiff in this: that, under the averment of said amended petition, the administrator of the estate of Margarite Turner, deceased, should bring the action, and the plaintiffs have no right to bring said suit, — it being averred in said amended petition that the dwelling house referred to (separate from the lot in which the same stands) belongs to Margarite Turner, deceased, and therefore necessarily was personal property, which passed to the administrator of said estate, (3) because, according to the averments of said amended petition, plaintiffs have no remedy in a court of equity; (4) because none of the plaintiffs are necessary parties to a complete determination of this action. The circuit...