Carr v. Carroll

• Decision Date: 06 March 1944
• Docket Number: No. 38799.,38799.
• Parties: CARR et al. v. CARROLL.
• Court: Missouri Supreme Court

178 S.W.2d 435

CARR et al. v. CARROLL.

No. 38799.

Supreme Court of Missouri, Division No. 1.

March 6, 1944.

Appeal from Circuit Court, New Madrid County; Louis H. Schult, Judge.

Suit by Alf Carr and others against W. N. Carroll to establish a resulting trust. Decree for plaintiffs, and defendant appeals.

Affirmed.

Claude Arnold, of Bloomfield, J. M. Haw, of Charleston, and J. V. Conran, of New Madrid, for appellant.

R. Kip Briney and Geo. Munger, both of Bloomfield, and Steve Barton, of Benton, for respondents.

HYDE, Judge.

This is an action to establish a resulting trust. The decree was in favor of plaintiffs and ordered defendant's interest vested in them. Defendant has appealed.

Plaintiffs' evidence showed that in December 1940, Wommack, Welborn and Cooper owned 1470 acres of land in the Mingo Drainage District in Stoddard County, which they were attempting to sell for $3,000. In order to promptly convey the land, if a buyer were found, they, together with their wives, executed a deed with the name of the grantee blank, and left it with Senator Wommack. In January 1941, M. G. Gresham, who died in November 1941, and plaintiff Carr, contracted with Senator Wommack to buy the land. Carr wrote a check on his own account for $3,000 at Gresham's request. At that time no direction was given about filling in the name of the grantee in the deed. Later Gresham called Senator Wommack and told him to make the deed to defendant. Senator Wommack said that he did not know defendant, that Carr was the man who paid the money, and that he would not make a deed to defendant until Carr wrote a letter asking him to do so. Carr did write such a letter and defendant's name was written in the deed as grantee. It was delivered to Gresham in February and recorded by him in March. Gresham conveyed other land to Carr to pay for his interest. After Gresham's death, an unacknowledged quit-claim deed from defendant to Gresham and Carr, dated February 7, 1941, was found in Gresham's office. On March 15, 1941, defendant executed a deed to Charles H. Every for 160 acres of the land. This was done to settle a suit by Every involving other lands in which Gresham and Carr were interested, and as a result of which Every released his claims to those lands. On April 25, 1941, defendant executed a deed conveying to John W. E. Smith a one-third interest in all of the remaining land conveyed to him. According to plaintiffs, defendant received no consideration for making either of these conveyances.

Plaintiffs' evidence further showed that Gresham and Carr borrowed $1,600 in Springfield and paid it to the Mingo Drainage District to settle drainage taxes on the land; that they took possession, sold timber and rented parts of the land in 1941 to various tenants; and that defendant made no claim whatever until after Gresham's death. Plaintiffs also had several witnesses who testified to declarations of defendant to the effect that he had no interest in the land and was only holding title for Gresham and others because of friendship for Gresham.

Defendant claims that he was to own a two-thirds interest in the land, and did not know that Carr had anything to do with it. He said that it was understood at the time of the conveyance to him that he was to deed the other one-third interest to Smith. He testified that the consideration for his interest was the cancellation of the indebtedness from Gresham to him of about $2,500, which arose by reason of Gresham collecting notes for him and borrowing the money collected. Defendant said he took Gresham's notes in 1935, and that he turned these notes over to him at the time the land was purchased. Defendant went through bankruptcy in 1925, but said that the notes Gresham collected were given him for live stock and other property he had acquired by 1927. Defendant had a witness, Yamnitz, who testified that he bought mules and machinery from defendant for $1,400 or $1,500 in 1927, giving him notes in payment. He said these notes were turned over to Mr. Gresham for collection when they were paid down to $700 or $800. He said he paid Gresham $1,100 or $1,200 on these notes, finishing payment in the fall of 1932. He also said that in 1934 he bought cattle from defendant for $400 or $500, giving him his note which he later paid to Gresham. He did not have any receipts or checks for his payments and said that they had been destroyed. Defendant also testified that Gresham had collected another note due him from one Crowder, deceased at the time of this transaction.

Defendant's explanation of the deed found in Gresham's office was that he signed a blank deed form in order to make the conveyance to Smith, but that Gresham later told him that it was lost, and got him to make another. His explanation of the payment of the drainage taxes was that he and Smith were to receive $1,600 credit for the 160 acres he conveyed to Every. Defendant also stated that he was on the land several times in the summer of 1941 talking to tenants and that he and Smith took a prospective purchaser (Southern) there, which was corroborated by Southern. Smith did not testify. It was shown that Gresham had represented defendant as his attorney in various matters since 1920 including...