Brown v. Turner

• Decision Date: 13 December 1892
• Citation: 20 S.W. 660,113 Mo. 27
• Parties: Brown et al., Plaintiffs in Error, v. Turner et al
• Court: Missouri Supreme Court

20 S.W. 660

113 Mo. 27

Brown et al., Plaintiffs in Error, v. Turner et al

Supreme Court of Missouri, Second Division

December 13, 1892

Error to St. Louis City Circuit Court.

Affirmed.

Stone & Slevin for plaintiffs in error.

(1) A wife's separate estate should not be deemed to have been reduced to possession by her husband, unless consent of the wife thereto be evidenced by her writing. Rodgers v Bank, 69 Mo. 583; Rieper v. Rieper, 79 Mo. 358; Blair v. Railroad, 89 Mo. 391; McCoy v Hyat, 80 Mo. 136; Broughton v. Brand, 94 Mo 169. (2) The administrator takes only the personality of the decedent. The realty passes at once to the heirs, subject only to liability for debts. Woerner's American Law of Administration, sec. 338; Chambers v. Wright, 40 Mo. 482. (3) A house is not personalty; it is real estate, being attached to the soil. Tiedeman on Real Property, sec. 2. (4) Where a person uses the money of another in the purchase of real estate, taking the conveyance in his own name, a resulting trust arises in favor of the parties advancing the money in proportion to the amount of the consideration which they may have respectfully contributed. The controlling question is the ownership of the purchase money. Baumgartner v. Guessfield, 38 Mo 41; Shaw v. Shaw, 86 Mo. 594; Martin v. Colburn, 88 Mo 229-231; Bower v. McKean, 82 Mo. 594; 3 Pomeroy on Equity, secs. 1103, 1104; Bank v. Hamilton, 34 N.J.Eq. 158. And, where money acquired by a married woman during coverture as her own property is intrusted to the husband for investment in real estate under an agreement that it shall be for her benefit and in her behalf, and is by him invested in real estate in his own name, the real estate will be treated in equity as her real estate (Kidwell v. Kirkpatrick, 70 Mo. 214; Burns v. Bangest, 92 Mo. 176; Cooper v. Standley, 40 Mo.App. 144; Bowen v. McKean, 82 Mo. 594), and the legal title to said real estate held by the husband in his own name, is held by him "in trust for her heirs, as he did for her during her lifetime." Broughton v. Brand, 94 Mo. 169. (5) This dwelling house was real property. Bowen v. McKean, 82 Mo. 594; Washburn on Real Property [3 Ed.] sec. 36, p. 21; Revised Statutes, 1889, sec. 2431, 4917. Real property includes "lands, tenements and hereditaments;" and "land" includes everything erected upon its surface, such as buildings, trees, etc. (Tiedeman on Real Property, sec. 2.); and as between the heirs and executor it constitutes a part of the realty and passes to the heirs. Tiedeman on Real Property, sec. 4. (6) These heirs could get no relief by going to the probate court, because that court would have no power or jurisdiction to order a sale of said real estate for any purpose whatever. Boston v. Murray, 94 Mo. 175.

Lee, McKeighan, Ellis & Priest and Gustave L. Stern for defendants in error.

(1) When the person to whom the conveyance is made pays part of the purchase money, no trust results to anyone who advances the residue, unless the part of the purchase money paid by him in whose favor the resulting trust is sought to be enforced is shown to have been paid for some specific interest in the estate, for some aliquot part, as it is sometimes expressed. McGowan v. McGowan, 14 Gray, 19; Perry v. McHenry, 13 Ill. 227, 238; Dudley v. Bachelder, 53 Me. 403; Baker v. Vining, 30 Me. 121; Brown on Statute of Frauds, sec. 86. (2) There can be no resulting trust of an estate to a particular extent of its value, leaving the residue of its value in the grantee. Wells on Separate Property of Married Women, 263; Dyer v. Dyer, 1 White & Tudor's L. C. Eq. 340; Sayre v. Townsend, 15 Wend. 647; Gibson v. Foote, 40 Miss. 788. (3) Being placed on the land with express intent, and understanding that the house remains the property of the wife, according to plaintiff's claim it did not become part of the realty, but remained personal property. Lowenberg v. Bernd, 47 Mo. 297; Hines v. Ament, 43 Mo. 298; Matson v. Calhoun, 44 Mo. 368. (4) The subsequent sale of the land to defendant Bird would not change the character of the plaintiff's claim (granting that Bird was not a bona fide purchaser), and, inasmuch as the house was personal property so far as rights of husband were concerned, being, according to plaintiff's claim, separate personal estate of the wife, to be released to the husband in writing alone. Lowenberg v. Bernd, supra; Priestly v. Johnson, 67 Mo. 632; Doty v. Gorman, 5 Pick. 489; Howard v. Fessenden, 14 Allen, 124; Morris v. French, 106 Mass. 326; Russell v. Richard, 10 Me. 429.

OPINION

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 safe keeping 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, therein before 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 the tenth of June, 1889, said Thomas to defraud them conveyed said lot to defendant John Bird, and charged 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 said lot, or so much as is necessary, to pay plaintiffs $ 1,500 and their costs.

Defendants demurred to this petition: First, Because it did not state facts sufficient to constitute a cause of action, and second, 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 on which the same stands) belonged to Margarite Turner, deceased, and therefore necessarily was personal property which passed to the administrator of said estate. Third. Because, according to the averments of said amended petition, plaintiffs have no remedy in a court of equity. Fourth. Because none of the plaintiffs are necessary parties to a complete determination of this action.

The circuit court sustained a demurrer, and, the plaintiffs electing to stand on their petition, final judgment was rendered, and they appealed to the St. Louis court of appeals. That court certified the case to this court, because plaintiffs impeached the title of the defendant Bird to the lot in question, and also defendant Turner to said property. Baier v. Berberich, 77 Mo. 413.

I. Plaintif...