Curd v. Brown

• Decision Date: 15 February 1899
• Parties: Curd v. Brown, Appellant
• Court: Missouri Supreme Court

49 S.W. 990

148 Mo. 82

Curd v. Brown, Appellant

Supreme Court of Missouri, First Division

February 15, 1899

Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.

Reversed and remanded (with directions).

Hall & Hall for appellant.

(1) An express trust is one created by words evincing an intention to create a trust. 27 Am. and Eng. Ency. of Law, pp. 6 and 25; Underhill on Trusts and Trustees, 12 and 18; Perry on Trusts (4 Ed.), secs. 2, 13 and 24; Foster v Friede, 37 Mo. 36; Beaver v. Beaver, 15 Am. St Rep. 531; Estate of Smith, 27 Am. St. Rep. 644; Harney v Dutcher, 15 Mo. 89; 2 Rapalje's Law Dict., 1296 and 1297. (2) An express trust must be proved by some writing signed by the party, or it will be void. R. S. 1889, secs. 5184 and 5186; Woodford v. Stephens, 51 Mo. 443; Ames v. Scudder, 11 Mo.App. 183; Price v. Kane, 112 Mo. 418; Wiess v. Heitkamp, 127 Mo. 23; Richardson v. Champion, 143 Mo. 538. (3) Where the husband purchases real estate with his own means and causes it to be conveyed to his wife, a prima facie case is made out that the husband intended the conveyance to be a provision or a settlement for the wife and not a resulting trust, as would arise if no such relation existed. Schuster v. Schuster, 93 Mo. 438; Gilliland v. Gilliland, 96 Mo. 522; Kinzey v. Kinzey, 115 Mo. 496; Boynton v. Miller, 144 Mo. 681. (4) The plaintiff's wife with whom he claims the contract in suit was made, being dead, plaintiff was disqualified as a witness in his own behalf, even in rebuttal. R. S. 1889, sec. 8918; Teats v. Flanders, 118 Mo. 670; Messimer v. McCray, 113 Mo. 382; Leeper v. Taylor, 111 Mo. 322; Ring v. Jamison, 66 Mo. 424; Angell v. Hester, 64 Mo. 142; Wood v. Matthews, 73 Mo. 482; Reynolds v. Reynolds, 45 Mo.App. 622. (5) In order to establish a resulting trust, it must be proved 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. Reed v. Painter, 129 Mo. 674; Burdett v. May, 100 Mo. 13; Cornet v. Bertelsmann, 61 Mo. 127; Bradley v. Bradley, 119 Mo. 61.

O. P. Hubbell and Harber & Knight for respondent.

(1) Where the purchase money of land is paid by one party and the legal title taken in the name of another, the parties being strangers, a resulting trust arises in favor of the party from whom the consideration proceeds. A similar rule prevails in cases where the consideration proceeds from two or more jointly, and the legal estate is taken in the name of one of them only. If, however, the husband purchases real property with his own means, and causes the same to be conveyed to his wife, a prima facie case is made out, that the husband intended the conveyance to be a provision or settlement for the wife and not a resulting trust, as would arise if no such relation existed. In either case, parol evidence is admissible to show the real intention of the parties. Perry on Trusts (4 Ed.), sec. 126; Baumgartner v. Frederick, 38 Mo. 36; Kelley v. Johnson, 28 Mo. 249; Shaw v. Shaw, 86 Mo. 594; Seibold v. Chrisman, 7 Mo.App. 254; S. C., 75 Mo. 308; Price v. Kane, 112 Mo. 412; Schuster v. Schuster, 93 Mo. 438; Gilliland v. Gilliland, 96 Mo. 522. (2) The evidence in this case was clear and conclusive. It showed, we think, without serious question, that respondent had invested $ 2,850, and more, in the purchase and improvement of the property in question. That it was understood at all times between him and his wife, that in case of sale of said property, if sufficient was realized to repay the purchase money and improvements, the same should be repaid. That in case of the death of respondent's wife, she at all times being sickly, respondent should be repaid the amount he had so invested in the purchase and improvement of said property. But, aside from such understanding or agreement, "the main point, the controlling question in inquiries of this nature, is the ownership of the purchase money. If such owership be established by parol in such manner as to leave no room for a 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. 594. (3) Appellant here relies on a presumption of law. Presumptions of law are, for the most part, arbitrary and harsh. Courts of equity, in applying them, will ameliorate their harshness. Appellant's claim is, in substance, based on the disputable presumption that the parties intended the conveyance to be a provision for the benefit of the wife. This presumption is not evidence -- its only legal effect is to place the burden of proof on respondent. (4) While we insist, that under the facts of this case, Mr. Curd was competent to testify in explanation and denial of the alleged conversations with the Carsons and Mahan, the same having occurred long after the death of his wife, yet, considering the long established and oft repeated rule in this State, that "in proceedings in equity, we (this court) do not pass on exceptions to the admissions or rejections of evidence," we deem a discussion of this question unnecessary. Padley v. Neal, 134 Mo. 372; Green v. Ditsch, 143 Mo. 1; Reynolds v. Croff, 144 Mo. 448. We respectfully insist that, from the evidence in the record, the prima facie case, the presumption of law, that Mr. Curd intended working a lifetime for his wife's relatives, has been overcome and fully rebutted.

OPINION

MARSHALL, J.

The petition is in the following language:

"Plaintiff says that on the 26th day of February, 1891, Susie E. Curd his wife, departed this life, seized, subject to right of plaintiff hereinafter stated, of the following land in Grundy county, Missouri, to wit: All of that part of block number four in James R. Merrill's Second Addition to the town of Trenton, in said county, described in the following metes and bounds to wit: commencing at the south west corner of said block, thence east one hundred feet, thence north one hundred feet, thence west one hundred feet, thence south one hundred feet to the place of beginning.

"The said premises were purchased by said Susie E. Curd and the plaintiff on the first day of October, 1877. That at the time thereof, said Susie E. Curd, paid of the purchase price the sum of one hundred dollars, and this plaintiff the sum of eight hundred and fifty dollars. That at the time of said purchase said premises were unimproved, except a small house thereon of the value of two hundred and fifty dollars. That it was agreed between plaintiff and his deceased wife at the time of said purchase and at other times during her life that plaintiff with his own money and means, should make certain improvements on said premises; that they should reside thereon as a home from the date of the purchase aforesaid until death of plaintiff's wife as aforesaid. That the money so invested by plaintiff in the improvement of said premises, should in case of a sale thereof be repaid to him, and then the amount so paid as the purchase price thereof by each, plaintiff and his wife, repaid to them if sufficient was realized from the sale thereof, if not they should each suffer such loss as the amount invested by them bore to the amount received from the sale thereof, and if a profit was realized from the sale thereof, after paying plaintiff for the sum so invested in the improvement as aforesaid the same should be apportioned and divided between them in accordance to the amount they had so paid in the purchase thereof. That in case said property was not sold they should own the same and have title thereto and rights therein, in accordance with the amounts so invested by each in the purchase thereof, and the improvement thereof. Plaintiff says that during the life of his wife and in pursuance of said agreement with her consent and direction, plaintiff in the erection of a house, stone and other fences thereon, and in erecting a barn and making other improvements thereon expended at various times during the life of his wife as aforesaid the sum of two thousand dollars. That said property is now of the value of about three thousand dollars. The plaintiff's said wife left surviving at her death, in addition to plaintiff aforesaid, her mother Elizabeth Mahan, and brothers Louis, John and Willie Mahan, and Mary Carson wife of John Carson, Amanda Jenkins wife of Samuel Jenkins, and Jennie Hamilton wife of C. C. Hamilton, and one niece, this defendant, the only child of Lucy Brown, wife of Jackson Brown.

"That plaintiff has purchased and now owns all the right, title and interest of each of said heirs above mentioned in said property, except the defendant who is a minor, and therefore unable to dispose of any interest she may have therein and hence the necessity of this suit to determine said interest and right of defendant and partition said property. And plaintiff avers the fact to be that the defendant is, as the niece of said Susie E. Curd, seized of one-eighth of said property subject to the rights of plaintiff as aforesaid, and this property being as plaintiff avers not susceptible of division he prays that the appointment of commissioners be dispensed with, and that the said premises be sold and out of the proceeds thereof, plaintiff be first paid the sum so expended in the erection and improvement of said property as aforesaid, i. e. two thousand and eight hundred and fifty dollars, and that the remainder of the proceeds arising from the sale, if there be any, be divided among plaintiff and defendant according to their respective interests. That is, that plaintiff may have seven-eighths and defendant one-eighth thereof, and that the court will make such other and further orders, decrees and judgments in the premises as may be just and...