Darrier v. Darrier

• Decision Date: 31 October 1874
• Citation: 58 Mo. 222
• Parties: CHARLES DARRIER, Appellant, v. BERTHA DARRIER, Respondent.
• Court: Missouri Supreme Court

58 Mo. 222

CHARLES DARRIER, Appellant,

v.BERTHA DARRIER, Respondent.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Jefferson Circuit Court.

L. Gottschalk, W. C. Kueffner, with Joseph J. Williams, for Appellant.

I. The court should have admitted the plaintiff's testimony with regard to the instructions sent by him to his wife as to how the title to the land was to be taken, and should also have admitted the letter from the plaintiff to the defendant on the same subject.

The text books, laying down the rule as to the exclusion of evidence of confidential communications between husband and wife, only refer to cases where the communication is to be proven by either against the party making it. (1 Greenl. Ev., 12 Ed., ch. 13, p. 286, § 254; ch. 2, p. 390, § 337; 2 Stark. Ev., 7 Am. from 3 Eng. Ed., part 1, 551; Cornell vs. Vanartsdalen, 4 Penn. St., 374; Cassin vs. Delaney, 33 N. Y., 178.)

II. The plaintiff was entitled to a decree upon the answer of the defendant and the evidence in the case. The law is well settled that when real estate is bought with the money of one person, but the title is taken in the name of another, a trust results in favor of the party advancing the purchase money. (Johnson vs. Quarles, 46 Mo., 426; Kelly vs. Johnson, 28 Mo., 249; Perry on Tr., ch. 5, p. 97, § 125.)

The rule that where a father or husband takes the title to land, purchased with his money, in the name of a wife or child, the presumption of a resulting trust is rebutted in favor of an intended advancement or settlement, applies only when the father or husband himself procures the deed to be made in favor of the wife or child; but when the nominal purchaser procures the conveyance, it must in addition affirmatively appear that he acted, when he took the title in his name, under the authority of the person advancing the purchase money. Otherwise, a trust will result in favor of the latter. (Peer vs. Peer, 3 Stock., 345.)

And even when the husband himself directs the title to be taken in the name of his wife, it may still be shown that no settlement was intended. And for this purpose, evidence may be received of cotemporaneous acts and facts, as well as of acts and facts so immediately after the purchase as to be fairly considered a part of the transaction. (Perry on Tr., ch. 5, p. 119, § 147.)

III. The answer of the defendant herself shows that no settlement was intended. According to her own statement the conveyance was not made as a settlement and provision absolutely, but only to become a settlement in the event of the plaintiff's death during the war.

The war being over, the husband is entitled to a re-conveyance. In a somewhat similar case, it has been held that a trust resulted in favor of the husband. (Cotton vs. Wood, 25 Ia., 45.)

IV. The court should have permitted an amendment of the bill of exceptions. A court has authority, as well after as before an appeal, to amend its records according to the truth so that they should accurately express the history of the proceedings which actually occurred prior to the appeal. (DeKalb County vs. Nixon, 44 Mo., 342; Pockman vs. Meatt, 49 Mo., 348; 1 Tidd's Prac., 9 Ed., ch. 29, pp. 712, 713; side pp. 713-14.) And this rule applies as well to record entries as to papers filed of record, and it applies to bills of exception, they being part of the record.

Henry F. Ahlvers, for Respondent.

I. This being an action by a husband against his wife, to obtain the title to land which is in the name of the wife, is not based on the doctrine of a resulting trust in favor of a person who furnishes the purchase money. (2 St. Eq. Juris., §§ 1202-4, pp. 420-22, 8 Ed.)

II. The testimony of appellant, that he had written to respondent to have the title made in his name, was properly excluded, for he testified to a communication from him to his wife. (Moore vs. Moore, 51 Mo., 118; Buck vs. Ashbrook, 51 Mo., 539; Berlin vs. Berlin, 52 Mo., 151.)

III. The motion to amend the bill of exceptions by inserting a certain letter therein, was properly overruled. Appellant should have proven, in support of such motion, that the letter was not copied in the original bill by mistake, oversight of the attorney or clerk, or the like.

IV. The judgment overruling said motion, has no business in this court. It came here neither by writ of error, nor by appeal, nor in any other way, except that appellant filed a transcript thereof here.

SHERWOOD, Judge, delivered the opinion of the court.

This case presents the anomalous feature of a husband seeking to divest his wife of the title to certain school lands, which formerly belonged to school township number six, in Jefferson county, charging in his petition that, while he was in the United States army, the defendant, with money which he had furnished, in contravention of her express promise and of his explicit instructions to take the title in his name, had fraudulently succeeded, by means of a deed from one Herman Darrier, and of certain patents issued by the State of Missouri, in taking the title in her own name; which fraudulent conduct, plaintiff never discovered until upon his return home from the army, in the year 1865.

The answer denied all the material allegations of the petition, and, in addition thereto, claimed that it was at the special instance and request of plaintiff, who, being engaged in active service, and aware of the consequent uncertainty of his life, and desirous, as he frequently said, to make provision for his wife in the event of his death while a soldier, that the title to the land was taken in her name, of which fact he was cognizant for a number of years; but raised no objection and made no complaint, until shortly before suit brought. A difficulty having arisen between plaintiff and defendant, he therefore desired to divest her of title. The statute of limitations was also pleaded. A reply was filed, denying the chief averments of the answer.

The testimony of the defendant establishes with conclusive clearness, that it was the funds of the plaintiff, viz: $300 in bank, and the proceeds of the sale of five shares of stock in the Franklin Insurance Company, as well as some other money, sent by plaintiff to her while he was in the army, with which the land was purchased. It is true, she also testifies that during the absence of her husband, she earned some money by her own labor; but she does not pretend that any portion of her earnings was applied towards paying for the land; and in addition to this, she admits she was, at the time of her marriage to plaintiff, entirely destitute of means. In support of the allegations of her answer, she testifies that she received a letter from her husband, authorizing her to arrange the business about the land and about paying for it, and that this was the only letter on the subject she had ever received from the plaintiff. She gives no date to this letter (which it seems was lost) but says she took it to St. Louis to Dauestraw, and he came down with her to Jefferson county to arrange the business, and Dauestraw, who corroborates her testimony with his own, says the letter was received in the early part of May or June, 1862, or about that time, and authorized defendant to buy the land, when it should be sold by the sheriff of Jefferson county, and take the conveyance in her own name; that witness went to Hillsboro with defendant, at her request, to assist her in effecting this purpose, and arranged matters in accordance with the instructions contained in the letter. He says further: “a deed of trust or claim of some kind was released; we paid the sheriff a certain amount of money, and the land was not sold on that day. I arranged with the sheriff that the property should be transferred to Mrs. Darrier in her name, and left her there to have the papers drawn up and the arrangement completed. This was some twelve years ago, and I do not clearly recollect the amount of money or the nature of the claim to be satisfied.” The defendant also testified that she was living in St. Louis, in the fall of 1862, and winter and spring of 1863; that plaintiff was at home in St. Louis, from October, 1862, till March, 1, 1863, as a recruiting officer, and after returning to his regiment in the South, returned again to, and remained with her at home, for two weeks in the fall of 1863; that she informed him of having taken the title to the land in her own name, and he said “all right.” When she so informed him is not stated, nor is it stated where she was living at the time.

She further stated that the patents for the land were sent to the clerk of the court at Hillsboro, and after being recorded were brought by the clerk to her in the winter of 1863, in St. Louis, where she was still living, and that she had never seen them until that time.

Where the purchaser of land pays the purchase money and takes the title in the name of a stranger, the presumption at once arises that the benefits accruing from the purchase are to go to him who paid the consideration. But a different rule prevails and a different presumption springs into being where, under similar circumstances, the conveyance is taken in the name of a wife or child; there, the obligation under which the purchaser rests to provide for the one in whose name the title is taken, will countervail any inference that a resulting trust was intended in favor of the actual purchaser. (Perry on Trusts, § 143; 2 Sto. Eq. Jur., § 1201 and cases cited.)

Looking at the case before us, then, from that point of view alone, it may be assumed as a basis at least of further remark, that the defendant had, at the conclusion of the evidence offered in her behalf, made out, prima facie, that an advancement must be presumed; and therefore, that the conveyances which she had secured in her own name should be regarded in that light. Whether the purchase, however, in the case at bar, was designed to be consummated in the manner claimed by the defendant, was a question of pure...