Cason v. Cason

• Decision Date: 31 January 1859
• Citation: 28 Mo. 47
• Parties: CASON et al., Defendants, v. CASON et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

28 Mo. 47

CASON et al., Defendants,

v.CASON et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1859.

1. Where a father gives money to his married daughter, though not to her separate use, and the husband purchases land therewith in his own name, such land will be deemed to have come to the husband in right of the marriage within the meaning of the third section of the dower act of 1845, (R. C. 1845, p. 430, § 3,) and if it remain undisposed of at the death of the husband, the widow will be entitled to it.

2. Resulting trusts are not within the statute of frauds.

Error to Callaway Circuit Court.

This was an action for partition of lands commenced by the collateral heirs of Larkin Cason, deceased, against his widow. With respect to one tract of eighty acres the widow set up as a defence that it did not belong to said Larkin Cason, inasmuch as it had been purchased with money given to her by her father James Luggett to be invested for her in land. With respect to this matter the court found the facts to be as follows: “That James Luggett, the father of defendant, after her intermarriage with the intestate Larkin Cason, gave to her the sum of two hundred dollars to purchase land, and that said fund came to the possession of said Larkin, who entered the east half of the north-west quarter of section 24, township 45, range 11, in his own name, with a portion of said fund; but, it not appearing to the satisfaction of the court that said money was given for the separate use of the defendant, it is considered and adjudged that the petitioners are entitled to partition thereof as heirs at law of said Larkin Cason.”Hardin, for plaintiff in error.

I. The land in question came to the husband in right of his wife. The court erred in declaring the law of the case.

Jones & Hayden, for defendant in error.

I. Whether there was a trust intended by James Luggett, the father of Mary Cason, was purely and simply a question of fact arising upon the oral testimony of the witnesses. It was a question peculiarly within the province of a jury or the court sitting as a jury, and this court will not disturb the judgment rendered in the cause. (Cadwallader v. Cadwallader, 26 Mo. 76.) There was neither an express trust nor a resulting trust proved. (Thompson v. Renoe, 12 Mo. 158; Rotsford v. Burr, 2 Johns. Ch. 408, 444; 5 Johns. Ch. 19.) Before equity will compel the husband or his representatives to execute a trust, there must be clear and unequivocal evidence of the trust sought to be established. (Walker v. Walker, 25 Mo. 367.) There was no error in excluding the will of James Luggett from the consideration of the court. This land did not revert to the wife under the fifth section of the dower law. We insist that the statute was intended to apply only to the specific property of the wife remaining undisposed of. Assuming even that there was a trust intended by the parties, there is authority for saying that even a resulting trust to James Luggett could not be proved by parol against the patent after the death of Larkin Cason, the alleged nominal purchaser. (1 Sand. on Uses and Trusts, 354; Roberts on Frauds, 99; Chalk v. Danvers, 1 Ch. Cas. 310.) The rule that money directed to be laid out in land is considered as land has no application to the fifth section of the dower act.

SCOTT, Judge, de...