Burnside v. Doolittle

• Citation: 24 S.W.2d 1011,324 Mo. 722
• Decision Date: 19 February 1930
• Docket Number: 28535
• Parties: Josephine Burnside and Commerce Trust Company, Appellants, v. Walter P. Doolittle and Mabel B. Doolittle
• Court: United States State Supreme Court of Missouri

24 S.W.2d 1011

324 Mo. 722

Josephine Burnside and Commerce Trust Company, Appellants, v. Walter P. Doolittle and Mabel B. Doolittle

No. 28535

Supreme Court of Missouri

February 19, 1930

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Affirmed.

Joseph S. Rust and James H. Cravens for appellant Josephine Burnside; Cooper, Neel, Kemp & Sutherland for appellant Commerce Trust Company.

(1) This action, being in equity, is triable de novo on its merits in the appellate court, and must either be affirmed, or reversed with instructions. Teutenberg v Hoover (Mo.), 250 S.W. 564; Cuthbert v. Holmes (Mo.), 14 S.W.2d 445; Bank of Pocahontas v. Miller (Mo.), 223 S.W. 9, 10; Bank v. Simpson, 152 Mo 638; Patton v. Bragg, 113 Mo. 595; Gill v. Clark, 54 Mo. 415. (2) All of the testimony showing that Samuel G. Burnside was the owner of the property, and that testimony being uncontroverted, the judgment on the merits should have been for the plaintiff and intervener, and against the defendants. (a) The testimony showing the exercise by Burnside of the usual rights of ownership was competent. Jamison v. Galloway (Mo.), 254 S.W. 105; Whitworth v. Barnes, 256 Mo. 468; Criddle's Admr. v. Criddle, 21 Mo. 522. (b) The uncontroverted testimony of admissions against interest by the defendants was most convincing. 2 Jones' Commentaries on Evidence, 358; Forrister v. Sullivan, 231 Mo. 345; Boggess v. Boggess, 127 Mo. 325. (c) The testimony on the one hand of the poverty of the defendants, and on the other hand of the high rental value of the properties in dispute, is most persuasive against the ownership thereof by the defendants. Cottrell v. Spiess, 23 Mo.App. 41. (d) The testimony as to defendants' acts and admissions being undisputed by them, although they were present in the court room, elevates that testimony to the position of an admission in terms by the defendants. Payne v. Railroad Co., 136 Mo. 594; State v. Musick, 101 Mo. 271; State v. Patrick, 107 Mo. 174; State v. Alexander, 119 Mo. 461; State v. Paxton, 126 Mo. 514; State v. Good, 132 Mo. 125; State v. Taylor, 134 Mo. 148; Baldwin v. Whitcomb, 71 Mo. 658. (3) Plaintiff's election to take a child's part, was erroneously excluded. 2 C. J. 363; Avery v. Good, 114 Mo. 296; Humbel v. Lowry, 264 Mo. 175; Teutonia Land Co. v. Litchfield, 19 Ind.App. 469, 65 Am. St. 419; Goodnow v. Litchfield, 67 Iowa 691, 25 N.W. 882.

E. McD. Colvin and Howard W. Grant for respondents.

As the record title to the property in dispute was in defendant Mabel B. Doolittle, in order to recover plaintiff must prove either that defendant held title thereto in trust for Samuel G. Burnside or that Burnside held by parol gift from defendant, or that Burnside acquired title by adverse possession. (1) There is neither pleading nor proof of facts necessary to establish a resulting trust and in the absence of clear evidence as to the necessary facts no trust will be decreed. Perry on Trusts (6 Ed.) par. 139; Philpot v. Penn, 91 Mo. 43; Johnson v. Quarles, 46 Mo. 423; Joerger v. Joerger, 193 Mo. 133. (2) Even if there is proof of payment of money by a father who takes title in the name of a child, the presumption is that the conveyance is intended as an advancement. Perry on Trusts (6 Ed.) par. 143; Hall v. Hall, 107 Mo. 101. (3) Proof of mere admissions that the property belonged to another is not sufficient to establish a trust in the absence of proof of some previous arrangement or proof of payment of the purchase money. Perry on Trusts (6 Ed.) par. 137. (4) The general rule is that a parol gift of land is invalid; so if the plaintiff and intervener are relying on a parol gift to Samuel G. Burnside, they must show a sufficient performance to take the gift out of the Statute of Frauds. 28 C. J. 56; Anderson v. Scott, 94 Mo. 637. (5) The record legal title being admittedly in the defendants the burden is on the ones relying on adverse possession which, in this case, are the plaintiff and intervener, to show all the essential elements of adverse possession if that is the basis of their claim. Lumber Co. v. Craig, 248 Mo. 319; McCune v. Goodwillie, 102 S.W. 1006.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Josephine Burnside as plaintiff filed suit in the Circuit Court of Jackson County against defendants, Walter P. Doolittle and Mabel B. Doolittle, to determine title to certain real estate alleged by her to have belonged to her deceased husband and for an accounting for rents. The Commerce Trust Company was permitted to and did file an intervening petition also asserting title in plaintiff's deceased husband. From a judgment in favor of defendants and dismissing plaintiff's and intervener's petitions plaintiff and intervener appeal.

Plaintiff is the widow, and defendant Mabel Doolittle is the daughter by a former marriage and the only child and heir, of Samuel G. Burnside, who died intestate in December, 1925. Walter Doolittle is the husband of his co-defendant.

Plaintiff's petition alleges that she is the widow of Samuel G. Burnside and as such widow has an interest in the real estate left by him, and that said Burnside "died seized and possessed of the following described real estate." Then follows a description of ten parcels of real estate, numbered "a" to "j" inclusive, the first eight being in Kansas City, Missouri, and the last two in the Isle of Pines off the coast of Cuba, and an allegation that defendants are in possession and claiming to be owners thereof and collecting the rents. There then follows, in paragraph 5 of the petition, an allegation that said Burnside "also died seized and possessed of" three described parcels of real estate, two in Kansas City and one in Jackson County, with the further allegation that defendants, though not claiming title, have collected rents on said three parcels since Burnside's death and failed to account therefor.

Intervener's petition in like language alleges that Burnside "died seized and possessed" of the ten parcels of property first above mentioned; that he also died "seized and possessed" of the three parcels described in paragraph 5 of plaintiff's petition, with further allegations to the effect that at the time of his death he was indebted to intervener and that said claim of intervener had been duly allowed in the probate court against Burnside's estate in the sum of $ 37,002.70; that said indebtedness had been secured by deed of trust on the three parcels of property described in paragraph 5, which deed of trust had been foreclosed and the property bought at the foreclosure sale by intervener for $ 15,000, which amount, less costs of foreclosure, had been credited on the debt, and that there were no assets in the estate out of which to pay the balance of the debt other than the ten parcels of real estate in controversy.

The prayer of plaintiff's petition for an accounting for rents dropped out of the case in the trial, so that the case resolves itself into an action to determine title to the ten parcels of property first above mentioned. Defendants by their answers deny that Burnside died seized and possessed of said ten parcels of real estate and aver that "the fee simple title to said real estate has been for many years and now is vested in defendants and that plaintiff has no interest therein."

It was admitted at the trial that the record title to the three parcels of property described in paragraph 5 of plaintiff's petition stood in the name of Samuel G. Burnside and that he owned same; also it was conceded by plaintiff and intervener that the record title to the ten parcels in dispute was in defendant Mabel B. Doolittle and had been for a number of years prior to Mr. Burnside's death, although it is not shown by pleadings or evidence when or from whom she acquired the title, nor by what kind of conveyances. The trial court and the petitioners seem to have assumed that she acquired the title prior to the marriage of her father and plaintiff, although there is no evidence so showing.

Plaintiff and intervener presented their cases together as though both were plaintiffs. The case was tried below by all parties as a suit in equity, wherefore we may so treat it on this appeal.

In their petitions the petitioners allege that Mr. Burnside "died seized and possessed" of the property, seemingly asserting legal title in him; but in their briefs in this court they contend that the evidence shows "equitable ownership" in him. There is no claim of fraud. There is neither allegation nor proof that Mabel Doolittle held the title in trust for her father, nor of any facts from which a trust could result. Neither is there allegation or proof tending to show a parol gift by Mrs. Doolittle to her father. There being no evidence to the contrary, it must be assumed that when Mrs. Doolittle acquired the record title she became and was the real owner. Petitioners do not suggest how that ownership passed from her to her father unless it be through adverse possession by the latter. They say in their reply brief that "there are other methods of acquiring title to real estate than the three methods enumerated" (viz., 1, by way of a trust; 2, by a parol gift; 3, by adverse possession). But they do not suggest what such other methods may be, nor is there any such suggestion in their pleadings or evidence. We need not speculate as to how Mr. Burnside might have acquired the title or become the owner. Petitioners assert, contrary to the record title and the ownership indicated thereby, that Mr. Burnside owned the property at his death. The burden was upon them to prove it. While not specifically resting their claim of such ownership upon acquisition of title by adverse possession, petitioners' briefs seem to invoke that theory.

Petitioners...