Burdette v. May
| Decision Date | 10 February 1890 |
| Parties | Burdett, Plaintiff in Error, v. May |
| Court | Missouri Supreme Court |
Error to Livingston Circuit Court. -- Hon. J. M. Davis, Judge.
Affirmed.
James L. Davis and John A. Hockaday for plaintiff in error.
(1) In equity proceedings the appellate court will review the evidence offered in the trial court. Beck v Pollard, 55 Mo. 26; Morey v. Staley, 54 Mo 419. (2) Adverse possession to be availing to the party pleading it must be open, notorious and exclusive. When held jointly with the adverse party or those in privity with him it will not overcome the superior title. Burk v. Adams, 80 Mo. 515; Mays v. Pryce, 95 Mo. 603; McQuiddy v. Wear, 67 Mo. 74; Hamilton v. Boggess, 63 Mo. 233; Houx v. Batteen, 68 Mo. 84; Lynde v. Williams, 68 Mo. 360. (3) The plea of the statute of limitations against one under disability, at the time the cause of action accrued, will not avail, until such disability is removed. Phillips v. Broughton, 30 Mo.App. 148; Sutton v. Casseleggi, 77 Mo. 397; Smith v. Ins. Co., 64 Mo. 330. (4) A trustee cannot hold adverse to the cestui que trust until he disavows the trust, and claims the fund as his own. Goodwin v. Goodwin, 69 Mo. 617; Dillon v. Bates, 39 Mo. 301. (5) Where land is entered in the name of an agent with means furnished by his principal under directions to enter the same in his name or the name of some designated person, the former will hold the title in trust for the party in whose name the same should have been entered. Valle v. Bryan, 19 Mo. 423; Buren v. Buren, 79 Mo. 538; Sharp v. Berry, 60 Mo. 575. (6) The payment of taxes alone will not support a claim of title under adverse possession. Chapman v. Templeton, 53 Mo. 463. (7) The statute of limitations does not begin to run, in favor of one holding land under a resulting trust, until the issue of a patent from the government. Hammond v. Johnston, 93 Mo. 198. (8) A party claiming title to land cannot invoke in aid of such title the statements of his grantor, or one under whom he claims, to third parties, as to the character of such title or possession. Morey v. Staley, 54 Mo. 421; Turner v. Belden, 9 Mo. 797.
W. C. Samuel, J. W. Samuel and C. H. Mansur for defendant in error.
(1) The evidence is wholly insufficient to establish a resulting trust. The evidence to create a resulting trust must be clear, strong and unequivocal, and such as to leave no room for a reasonable doubt. A mere preponderance of evidence will not do. There should be no room for a reasonable doubt in the mind of the chancellor. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Forrester v. Scoville, 51 Mo. 268; Berry v. Hartzell, 91 Mo. 136; Gillespie v. Stone, 70 Mo. 507; Philpot v. Penn, 91 Mo. 38. (2) The bar of the statute of ten years will control this case. Buren v. Buren, 79 Mo. 542; Ricords v. Watkins, 56 Mo. 553. (3) The long delay in making any attempt to enforce the alleged trust by plaintiffs amounts to gross laches. If there has been laches in prosecuting the claim, or long acquiescence in the operation of adverse rights, the court will refuse to interfere, though less than the statutory period has elapsed. Kelly v. Hurt, 74 Mo. 561; Stevenson v. Saline Co., 65 Mo. 425; Landrum v. Union Bank, 63 Mo. 48; Bliss v. Pritchard, 67 Mo. 181; Bradshaw v. Yates, 67 Mo. 232; Badger v. Badger, 2 Wallace, 87; Perkins v. Cartmill, 42 Am. Dec. 757, notes and authorities cited. The attention of the court is specially called to the case of Badger v. Badger, for reasons upon which the doctrine of laches is based. (4) There is no allegation in the pleadings of any coverture or infancy, or any other matter which avoids the statute of limitations. The exceptions to the statute not being in the pleadings, no evidence could be received in relation to them. Keeton's Heirs v. Keeton's Adm'r, 20 Mo. 542; Badger v. Badger, 2 Wallace, 95; Lonsdale v. Smith, 16 Otto, 391.
Barclay, J., concurs in a separate opinion.
-- I. This case may be ruled on two points, either of which is decisive. First. The insufficiency of the testimony to establish a resulting trust, and, second, 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. 423; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Gillespie v. Stone, 70 Mo. 505; Philpot v. Penn, 91 Mo. 38, 3 S.W. 386; Berry v. Hartzell, 91 Mo. 132.
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: (1 Greenl. Ev., sec. 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 four hundred dollars, 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 Callaway 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, lives 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 eighteen 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 ex rel. 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.
II. In addition thereto, the claim of the plaintiffs is barred by the statute of limitations. That statute, although it will not, as a rule, run against technical or express trusts, yet it will do so from the time when the facts constituting a resulting trust are brought home to the cestui que trust. Buren v. Buren, 79 Mo. 538 and cases cited. In the case at bar, as the cause of action accrued in 1848, Mrs. May, the mother, only became discovert in 1863, her disability prior to the latter date prevented the statute from running against her, inasmuch as the time specified in the proviso of section 3222 had not expired. That is to say, the twenty-four years mentioned in that proviso had not elapsed between the time the right or title of Mrs. May first descended or accrued to her and the period when she became discovert....
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