Cassity v. Cassity

• Decision Date: 01 May 1922
• Docket Number: No. 14346.,14346.
• Citation: 240 S.W. 486
• Parties: CASSITY v. CASSITY et al.
• Court: Missouri Court of Appeals

240 S.W. 486

CASSITY v. CASSITY et al.

No. 14346.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published." "

Suit by Mary Cassity against Amanda J. Cassity and others. From judgment for plaintiff, defendants appeal. Affirmed, and transferred to the Supreme Court.

H. J. West, of Brookfield, for appellants. Bailey & Hart, of Brookfield, for respondent.

BLAND, J.

This suit, brought in two counts, is to declare a resulting trust in 86 acres of land situated in Linn county, Mo., and to partition the same. The court declared a resulting trust in favor of plaintiff to a .3237 interest in the land, and that plaintiff was possessed of the legal title to a half interest in the land. The court, therefore, found that the interest of plaintiff in the land was .61185 of the whole, and that the defendants were the owners of the balance, and ordered the land partitioned.

The facts show that Thomas Cassity, Hugh Cassity, Walter E. Cassity, Albert Cassity, Laura Baker, and Nora Carmack were brothers and sisters, and that Amanda J. Cassity was their mother. The brothers and sisters inherited the land in controversy from their father, their mother having taken a child's part, each of the above-named persons had a one-eighth interest in the property. This was the condition upon January 14, 1914, when the land was purchased and title to the same was taken in the name of Walter E. Cassity, husband of plaintiff. After this transaction Nora Carmack died, leaving the defendants, Edgar and Dillard Carmack, her children, as her only heirs. On the 20th day of September, 1920, Walter E. Cassity died intestate, leaving surviving him his widow, the plaintiff, and the defendants as his sole and only heirs at law. His widow, the plaintiff, elected to be endowed of one-half of the real and personal property of which her husband died seized.

The purchase price of the land was $4,325. Walter E. Cassity was entitled to a one-eighth share, and he was given credit for his share on the purchase price. The parties selling the land also inherited a 25-acre tract valued at $49 an acre, which was deeded to Benjamin Cassity, and figured in the transaction, so that the share of each one of those interested in the above tracts after the expenses were paid was $688.45. Walter E. Cassity was given credit for $688.45 on the $4,325 represented by the purchase price of the 86 acres of the land. An 18-acre tract belonging to plaintiff also figured in the transaction and in the deal defendant Albert Cassity obtained this land at a valuation of $1,000. In part payment of the purchase price the sum of $2,100 was paid in cash, which was borrowed from one McGhee, which loan was evidenced by a note in that sum and a first deed of trust on the property to secure same. The note and deed of trust were signed by Walter E. Cassity and Mary Cassity, plaintiff herein. A note for $400 and a second deed of trust to secure same was given upon the land, executed by plaintiff and her husband in favor of Amanda J. Cassity, and was given in part payment of the purchase price of the interest of the latter in the 86 acres of land. So the $4,325 purchase price of the land in controversy was made up as follows: $688.45, being the share of Walter E. Cassity in the 86-acre and 25-acre tracts; $1,000, the value of plaintiff's land that figured in the transaction; the $2,100 cash which was realized from the Mc-Ghee deed of trust; the $400 note to Amanda J. Cassity, and a balance of $136.55. As to whom this last sum was paid or who paid it or how it was paid, there is no evidence. Taking the evidence in its most unfavorable light to plaintiff, her husband contributed $822 to the purchase price, and she contributed $1,400. Her contribution was represented by the $1,000, being the value of her land. and `the $400 represented by the note to Amanda S. Cassity. The evidence, showing that this $400 was her contribution, will be hereinafter discussed. The $2,100 deed of trust was their joint debt.

The court declared a resulting trust in plaintiff's favor in the 86 acres of land to the extent that $1,400 bears to the entire purchase price. It was admitted at the trial that she was entitled to a resulting trust to the extent of the $1,000 but not as to the $400, and it is on account of the fact that the court allowed her a resulting trust for the $400 that defendants appealed the case here, and now says that the court erred in declaring a resulting trust in favor of plaintiff to the land for any sum over $1,000.

Walter E. Cassity being dead, plaintiff was an incompetent witness and when she was offered as a witness her testimony was objected to by defendants, and it was excluded. There is therefore no direct evidence as to the agreement made between plaintiff and her husband at the time the $2,100 or the $400 notes and deeds of trust were executed by them. There is evidence that plaintiff's brother in 1915 purchased of her her interest in her mother's dower land for $400, which he paid to Walter E. Cassity by check; the latter representing plaintiff. Walter E. Cassity turned this check over to his mother, Amanda J. Cassity, in settlement of the $400 deed of trust. Defendants claim that there was interest due upon this note, and that there is no evidence as to who paid the interest. There is no substantial evidence in the record that there was any interest due. The evidence was: "I guess there was some little interest on it when he (Walter E. Cassity) paid it." (Italics ours.) Plaintiff's brother testified to this fact but it was not shown that he was in a position to know whether there was any interest due or not, and he merely made a guess as to the matter, so there is no substantial evidence in the record as to whether there was any interest due on the $400 loan.

Defendants call our attention to the rule that a resulting trust "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" (Smith v. Smith, 201 Mo. 533, 547, 100 S. W. 579, 582, and cases therein cited), and also that in order for there to be a resulting trust where the consideration is paid by one person and the conveyance is taken in the name of another the consideration must have been paid at the time of or prior to the purchase. 26 R. C....