Clubine v. Frazer

• Decision Date: 04 May 1940
• Docket Number: 36062
• Parties: Mary Pipes Clubine, Herman Pipes, Bertha Pipes Brannan, Charley Pipes and Darrell Pipes v. Ella Frazer, Harley W. Frazer, Emma Hennen, Nellie Gorman, E. S. Frazer, Myrtle Dewitt, Lulu B. Frazer, Robert E. Frazer, Gladys Ruth Frazer, Gerald R. Morris, Sarah M. Frazer, John W. Lee, Administrator of the Estate of Estra E. Frazer, and Sarah M. Frazer, Administrator of the Estate of Alfred R. Frazer, Defendants, Emma Hennen, Nellie Gorman and John W. Lee, Administrator of the Estate of Estra E. Frazer, Appellants
• Court: Missouri Supreme Court

139 S.W.2d 529

346 Mo. 1

Mary Pipes Clubine, Herman Pipes, Bertha Pipes Brannan, Charley Pipes and Darrell Pipes v. Ella Frazer, Harley W. Frazer, Emma Hennen, Nellie Gorman, E. S. Frazer, Myrtle Dewitt, Lulu B. Frazer, Robert E. Frazer, Gladys Ruth Frazer, Gerald R. Morris, Sarah M. Frazer, John W. Lee, Administrator of the Estate of Estra E. Frazer, and Sarah M. Frazer, Administrator of the Estate of Alfred R. Frazer, Defendants, Emma Hennen, Nellie Gorman and John W. Lee, Administrator of the Estate of Estra E. Frazer, Appellants

No. 36062

Supreme Court of Missouri

May 4, 1940

Appeal from Circuit Court of Sullivan County; Hon. Paul Van Osdol, Judge.

Reversed and remanded (with directions).

P M. Marr and L. E. Atherton for appellants.

(1) There was no evidence that Estra E. Frazer received any money or property from Sarah Frazer, no evidence that he received any money or property without her written consent; hence plaintiffs failed to make necessary proof and their bill should have been dismissed. Sec. 3003, R. S. 1929. There was no proof of any admission by Frazer that he had received or used any of Sarah's money. (2) The evidence fails to meet the test laid down by the decisions of this court in order to establish a resulting, implied, or constructive trust by parol proof. Parol proof to establish a resulting trust as to realty "must be so strong, cogent and convincing as to leave no doubt in mind of the chancellor as to the creation of the trust," and "as to exclude every reasonable doubt from his mind." Jacks v. Link, 236 S.W 10, 291 Mo. 282; Purvis v. Hardin, 122 S.W.2d 936; Gaugh v. Gaugh, 11 S.W.2d 729; Milligan v Bing, 108 S.W.2d 108; Parker v. Blakely, 93 S.W.2d 981, 338 Mo. 1189; Williams v. Keef, 145 S.W. 425, 241 Mo. 366; Curd v. Brown, 148 Mo. 82. (3) If the trust arose anterior to or at the time Frazer took the deed to the 360 acres in 1897, and not by subsequent occurrences, such as isolated statements made by Frazer many, many years later that the 80 was "Ma's," some of which statements were made by Frazer more than 30 years later when he was pressed by creditors. Gaugh v. Gaugh, 11 S.W.2d 746; Parker v. Blakely, 93 S.W.2d 981, 338 Mo. 1189; Stevenson v. Haynes, 220 Mo. 199, 119 S.W. 346; Clark v. Clark, 4 S.W.2d 807, 319 Mo. 591; Garrett v. Garrett, 171 Mo. 155. (a) And it must be proved, which was not done here, that a part of the money and property of Sarah E. Pipes-Frazer actually went into the real estate in controversy. Benz v. Powell, 93 S.W.2d 877; Gaugh v. Gaugh, 11 S.W.2d 746. (4) Sarah Frazer had the right to make a gift inter vivos by mere delivery of her personal property to Estra E. Frazer, if she so desired, and the only evidence is that if she did turn her personal property to him she did so in consideration of him helping her raise her three youngest children by her former husband. Roethemeier v. Veith, 69 S.W.2d 930, 334 Mo. 1030; In re McMenamy's Guardianship, 270 S.W. 662, 307 Mo. 98; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079. (5) Plaintiffs' bill should have been dismissed because their cause of action was and is barred by statute of limitations, which are favored by the law. Shelby County v. Blagg, 135 Mo. 291. (a) The plaintiff's contention was that money and property of Sarah E. Pipes-Frazer came into the possession of her husband in 1896, at which time the Statute of Limitations began to run. If she treated him as a debtor it ran in five years. Smith v. Settle, 107 S.W. 430, 128 Mo.App. 379; Graham v. Wilson, 153 S.W. 83, 168 Mo.App. 185; Sec. 862, R. S. 1929. (b) If she saw fit to treat him as trustee the statute ran in ten years. Zeitinger v. Realty Co., 28 S.W.2d 1030; Newton v. Rebenack, 90 Mo. 650; Sec. 850, 853, R. S. 1929. (c) The evidence was that the deed to the land in controversy was recorded October 28, 1896, and the recording of this deed was notice to Sarah E. Pipes-Frazer that title had not been taken in her name and she must bring her action within the time limited by law. Reisse v. Clarenbach, 61 Mo. 310; Hudson v. Cahoon, 193 Mo. 547; Clay v. Walker, 6 S.W.2d 966; Branner v. Klaber, 49 S.W.2d 167. (d) Plaintiffs' cause of action, if any, was to establish an implied or resulting trust, limitations for the enforcement of which began to run from the date of the recording of the deed or from the conveyance. Zeitinger v. Annuity Realty Co., 28 S.W.2d 1030; Branner v. Klaber, 49 S.W.2d 167; Newton v. Rebenack, 90 Mo.App. 659; Reed v. Painter, 145 Mo. 341. (e) If this is on a claim for the recovery of real estate it is barred by Sections 850 and 853, Revised Statutes 1929, the ten year statute, as there is no saving clause for fraud. Branner v. Klaber, 49 S.W.2d 169, 330 Mo. 306; Zeitinger v. Annuity Realty Co., 28 S.W.2d 1030; Hudson v. Cahoon, 193 Mo. 547. (f) This action is not saved by Section 852, Revised Statutes 1929, having to do with persons under disability, as the saving clause of that statute applying to married women went out in 1917, by legislative enactment.

A. B. Walker and Owen & Thurlo for respondents.

(1) The trial court did not err in finding a judgment and decree in favor of plaintiffs and against the defendants, appellants here. (a) Where the husband purchases land and pays for it, partly with money and property of his wife, the title thereto, if taken in his own name, is held in trust for her in proportion as the amount of her separate money thus used by him bears to the whole of the purchase price; and a resulting trust arises in favor of the wife and her heirs at law. Spadling v. Spadling, 222 S.W. 814; Clay v. Walker, 6 S.W. 966; Moss v. Ardrey, 260 Mo. 595, 169 S.W. 6. (b) Resulting trusts may be established by parol evidence, if such facts are established in such a manner as to leave no room for reasonable doubt in the mind of the chancellor, the resulting trust springs into being by implication of law, and follows the ownership of the money. Shaw v. Shaw, 86 Mo. 598; Deer v. Deer, 180 S.W. 575; Moss v. Ardrey, 260 Mo. 595, 169 S.W. 6. (c) The same rule applies to a portion of the purchase money as it does to all, the resulting trust attaches in ratio of ownership. Crawford v. Jones, 163 Mo. 517, 63 S.W. 838. (d) Resulting trusts may be proven and established by circumstantial evidence. I Perry on Trusts (6 Ed.), sec. 133; Cassity v. Cassity, 240 S.W. 488; Baughman v. Baughman, 119 N.E. 53. (2) The trial court did not err in holding in effect that money or property of Sarah Frazer came into possession of her husband, Estra E. Frazer, without her written consent, because the burden of proof of written consent was upon defendants. Where the husband purchases land with his wife's money and takes title in his own name, the burden is on those claiming under him to show that she expressly assented in writing to such disposition of her money, and not on her or her heirs to show she did not so assent. Fogle v. Pendell, 154 S.W. 84, 248 Mo. 65. (3) The court did not err in holding there was sufficient evidence to sustain plaintiffs' cause of action. (a) Resulting trusts may be proven and established by circumstantial evidence. 1 Perry on Trusts (6 Ed.), sec. 133; Baughman v. Baughman, 119 N.E. 53; Cassity v. Cassity, 240 Mo. 488. (b) Statements of a deceased person as to who owned the land may be of such a nature as to base thereon a finding that a resulting trust arose, when corroborated by other facts and circumstances. Baughman v. Baughman, 119 N.E. 53; Elliott v. Prather, 260 Ill. 64, 102 N.E. 1015; Bachseits v. Leichtweis, 256 Ill. 357, 100 N.E. 199. (c) The finding and judgment having been based upon the facts and circumstances in evidence sufficient to sustain the decree in favor of respondents, it should be affirmed. New England Loan & Trust Co. v. Browne, 76 S.W. 954, 177 Mo. 412; Lins v. Lindhart, 29 S.W. 1025, 127 Mo. 271; Young v. Levine, 31 S.W.2d 978, 326 Mo. 593; Stubblefield v. Husband, 106 S.W.2d 419. (4) The court did not err in holding that the 80 acres of land involved here was not the property of Estra E. Frazer at the time of his death. Where a husband invests his wife's money in land and takes title in his own name, a resulting trust arises in favor of the wife. Spadling v. Spadling, 222 S.W. 814; Clay v. Walker, 6 S.W.2d 966; Moss v. Ardrey, 260 Mo. 595, 169 S.W. 6.

OPINION

Ellison, P. J.

The plaintiffs-respondents are the lineal descendants and heirs through a former marriage of Sarah E. Frazer who died in November, 1932, predeceasing her second husband Estra E. Frazer a little more than two years. The defendants-appellants are his lineal descendants and heirs by a former marriage, together with his widow by a third marriage, his administrator and the widow of a deceased son. Respondents sued in equity. The decree appealed from found and adjudged them to be vested with the fee simple title to a certain described 80 acres of farm land in Sullivan County.

The bill is very informal, and alleges that in 1897, a year after the marriage of Mr. and Mrs. Frazer, he appropriated without her written consent the proceeds of her separate real and personal property (in violation of the Married Women's Statute, Sec. 3003, R. S. 1929, Mo. Stat. Ann., p. 5064) of the aggregate value of $ 2450, and used the same to pay for and improve said 80 acres purchased the same year, the title to which he fraudulently took in his own name without Mrs Frazer's knowledge or consent. It is further alleged that thereafter at all times he fraudulently assured her she owned and held the record title to the land, in consequence of which she did not learn the contrary until January, 1931. Next comes an averment that the tract was always jointly occupied by the couple as a homestead, following which the conclusion is pleaded that the respondents "are entitled to...