Burdette v. May

• Citation: 12 S.W. 1056,100 Mo. 13
• Parties: BURDETTE et al. v. MAY et al.
• Decision Date: 10 February 1890
• Court: United States State Supreme Court of Missouri

12 S.W. 1056

100 Mo. 13

BURDETTE et al. v. MAY et al.

Supreme Court of Missouri.

February 10, 1890.

LIMITATION OF ACTIONS — RESULTING TRUSTS.

1. A resulting trust is not sufficiently established where the evidence consists mainly in verbal admissions made by defendant thirty-five years before suit brought, and before the date of his patent, and where there is evidence of a statement made by the cestui que trust, who died 18 years before the institution of the suit, to the effect that the land belonged to defendant, and where no claim has been asserted by plaintiffs, who claim as heirs of the cestui que trust, for over 18 years.

2. In Missouri, the statute limiting the time within which actions for the recovery of real estate must be brought applies to actions to establish resulting trusts, the statute beginning to run on the discovery of the facts constituting the trust. Per SHERWOOD and BARCLAY, JJ.

3. Under Rev. St. Mo. § 3222, providing that, if any person entitled to commence an action for the recovery of land shall be under disability, the action may be commenced within three years from the time the disability is removed, provided no action shall be brought after 24 years from the time the cause of action accrued, where the statute once begins to run against a person who dies, it continues to run against his heirs, notwithstanding they may be under disability. Per SHERWOOD and BARCLAY, JJ.

Error to circuit court, Livingston county; J. M. DAVIS, Judge.

Action by Sarah Burdette and others against James May and others to establish a resulting trust. Plaintiffs allege that defendant James May entered the land in his own name, when it should have been entered in the name of his mother, she having furnished the money to buy the land. Rev. St. Mo. § 3219, prescribes that actions for the recovery of real estate must be brought within 10 years from the time the cause of action accrued, and section 3222 prescribes that if the person entitled to sue be under disability the action may be brought within 3 years after the disability is removed, provided no action shall be brought after 24 years from the time the right of action accrued.

James L. Davis and John A. Hockaday, for plaintiffs in error. W. C. & J. W. Samuel and C. H. Mansur, for defendants in error.

SHERWOOD, J.

1. This case may be ruled on two points, either of which are decisive: (1) The insufficiency of the testimony to establish a resulting trust; and, (2) the statute of limitations. The rule which prevails in this state, the general rule elsewhere upon the subject of resulting trusts, requires that in order to prove such a trust it must be established by testimony so clear, strong, and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. This is the substance and effect of the language employed by the authorities and by this court in numerous instances. Johnson v. Quarles, 46 Mo. 425; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Gillespie v. Stone, 70 Mo. 507; Philpot v. Penn, 91 Mo. 38, 3 S. W. Rep. 386; Berry v. Hartzell, 91 Mo. 132, 3 S. W. Rep. 582. The testimony in this cause, it will be observed, is made up, for the most part, of the verbal admissions of the party against whom the resulting trust is sought to be established. Touching the subject of such admissions, and the weight to be given them, Greenleaf states: "The evidence, consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say." 1 Greenl. Ev. §§ 45, 97, 200. And those admissions were made when? Certainly, prior to August 15, 1848, the date of the patent to James May, since which time he has occupied the premises, paid taxes, made improvements, bought and sold, and managed the place as if it were his own. The fact that his father and family lived upon the place for a number of years along with James May argues nothing against his title, especially when considered in connection with the relationship between the parties, and other facts in evidence. William May, a brother, worked for James May on the farm, and for the years 1857 to 1859 was paid by James $400 for his labor, and went away, and remained away from the place ever since, with the exception of a visit to the place in 1865, when he took away, on a visit to Gallaway county, his mother, whom he found living at James' house. None of the children claimed the place, or set up any opposition to the title of James; and it is truly remarkable that William May should accept wages from his brother, if he knew he was as much entitled to the place as his brother. Indeed, he, as well as Graham and wife, have refused to join in the present suit, and therefore were made parties defendant. It is so natural that parties having a right to property should assert it, should continue to live upon it, after once having lived there, that the fact that they have done neither must weigh heavily against the probability of the justness of their claim, when asserted after so many years of silence, non-claim, and abandonment. None of the present claimants, so far as appears, live on the property in dispute, or did so at the time of the mother's death, which occurred in 1865, her husband having died in 1863. And, from testimony introduced on behalf of the real defendant, James May, it appears that his mother made, in 1861, to one of her neighbors and intimate friends, the statement that the place was given to him as a recompense for staying with his parents, and caring for them in their old age. And the testimony of William May goes to strengthen this view, because he says that on a difficulty springing up between himself and brother James, in 1857, about working, that his mother told James that the place was hers during her life, etc. Now, if these statements by the mother were made, they being statements of the equitable owner then in possession, according to plaintiff's theory, they were competent testimony; and, admitting that defendant James May did make the verbal admissions heretofore ascribed to him, they are not inconsistent with the statements of his mother. Besides, it must be borne in mind that the present proceedings were instituted over 18 years after the death of the mother, who knew all about the transaction. Courts of equity view with disfavor suits that are brought long after the transactions litigated have occurred, and long after death has sealed the lips of those familiar with occurrences so remote in point of time. State v. West, 68 Mo. 229; Lenox v. Harrison, 88 Mo. 491, and cases cited. For these reasons, it must be held that the claim of plaintiffs has not been established in the manner demanded by the authorities heretofore quoted.

2. In addition thereto, the...