Davis v. Cummins

• Decision Date: 22 May 1917
• Docket Number: No. 18275.,18275.
• Parties: DAVIS v. CUMMINS et al.
• Court: Missouri Supreme Court

195 S.W. 752

DAVIS v. CUMMINS et al.

No. 18275.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Suit by Stephen E. Davis against Hortense Cummins and others. From the decree, plaintiff and certain of the defendants appeal. Reversed and remanded, with directions.

On April 30, 1912, plaintiff — a son of E. G. Davis, now deceased — filed in the circuit court of Newton county, Mo., a petition for the partition of 530 acres of land in said county, described as follows: The N. W. ¼ and S. W. ¼ of the N. E. ¼ and the N. W. ¼ of the S. W. ¼ and the N. W. ¼ of the S. E. ¼ of section 15, and the N. E. ¼ of the N. E. ¼ and the N. E. ¼ of the N. W. ¼ of the N. E. ¼ of section 16, all in township 25, range 29, containing 330 acres. Also, the S. ½ of the S. W. ¼ and the N. E. ¼ of the S. W. ¼ and the S. W. ¼ of the S. E. ¼ of section 15, and the S. E. ¼ of the N. E. ¼ of section 16, township and range aforesaid, containing 200 acres. Plaintiff claims to be the legal owner of the undivided five-sevenths interest in said 330 acres, except the N. W. ¼ of the S. E. ¼ of section 15 aforesaid, of which he claims to be the legal owner of the undivided six-sevenths interest therein. He claims to be the absolute owner of the 200 acres above described. It is conceded that Hortense Cummins is the legal owner of the undivided one-seventh interest in the 330 acres aforesaid; and that Mary C. Davis died the legal owner of the undivided one-seventh of said 330 acres, except the N. W. ¼ of the S. E. ¼ of section 15 aforesaid. All of the parties named as defendants herein answered in the cause and set up their respective claims to the land in controversy.

About September 20, 1852, one Elias G. Davis married the defendant Mary A. Davis in the state of Kentucky. Her maiden name was Mary A. Lyons. There were born of this marriage the defendants Austin T. Davis, S. L. Davis, Wm. J. Davis, Anna L. Showan, and the mother — now deceased — of the three grandchildren, Fred L. Auxier, Wm. Auxier, and John P. Auxier. About the year 1865, said E. G. Davis left his wife in the state of Kentucky with said children, went to the state of Indiana, from there to the state of Texas, and finally landed in Newton county aforesaid. About the year 1869, after posing as a single man, and without being divorced from said Mary A. Davis, on September 9, 1869, in Barry county, Mo., he was, in form of law, married to Mary A. Staples. There were born of this marriage two children, one of whom died in infancy, and the other is the plaintiff herein. The latter was born in 1870, and his mother died in 1881. Mary A. Davis, believing said E. G. Davis to be dead — long after he abandoned his family in Kentucky — without having been divorced from him, married a man by the name of Tolle, in the state of Kentucky, and he died before the commencement of this action. Neither said E. G. Davis, nor his wife Mary A. Davis, were ever divorced from the bonds of matrimony contracted in Kentucky as aforesaid. There is nothing in the record to indicate that Mary Staples had any knowledge of the fact, when she married E. G. Davis, that he was a married man. After her death, said Davis returned from Eureka Springs, Ark., to Newton county, Mo.

Lewis C. Grimes, a resident of said county, died intestate about the year 1881, the legal owner of about 850 acres of land in said county of Newton, including part of the land in controversy, and left as his widow Mary Caroline Grimes; but no children were born of this marriage. The probate court of said county set off to said widow a dower and homestead interest in that part of said 330 acres, as shown upon the blueprint in the abstract of record, and which is made a part of this opinion. On November, 23, 1882, said Mary C. Grimes, in from of law, was married to said E. G. Davis, whose true name was Elias G. Davis. It clearly appears from the record that from the time of her marriage, to the date of his death, which occurred in February, 1912, she believed he was a single man, and in good faith lived with him as her lawful husband. There were no children born of this marriage, but at the death of said Mary C. Davis she left, as her brothers and sisters and only heirs at law, the respondents Sue W. Stader, Deborah E. Berry, George Weaver, and Hiram Weaver.

At the time of the death of said E. G. Davis, in February, 1912, he was possessed of the fee-simple title to all of the 530 acres aforesaid, subject to the homestead and dower rights of said Mary C. Davis, in the 330 acres aforesaid, except the undivided one-seventh interests, respectively, of defendant Hortense Cummins, and said Mary C. Davis, heretofore mentioned. Defendants Mary A. Davis and her children answered and claim to be the owners of all the real estate possessed by said Davis at the time of his death. He became the record owner of said real estate, through conveyances from the stepchildren of Mary C. Davis. The respondents Sue W. Stader et al., in their answer, claim the equitable title and beneficial ownership of all the 530 acres aforesaid, except the interest of said Hortense Cummins, heretofore mentioned. They charge, in substance, that said E. G. Davis, at the time of his marriage with Mary C. Davis, was insolvent, and that the latter paid, or caused to be paid, the purchase money for all the real estate possessed by said Davis at the time of his death. They ask to have declared in their favor a resulting trust as to the land aforesaid, and that the other parties to this action, except Hortense Cummins, be divested of the title thereto; that the same be vested in them, etc.; and conclude with a prayer for general relief.

The real question for our consideration is whether or not the respondents, on the record before us, are entitled to have enforced, against the land aforesaid conveyed to said E. G. Davis, or any portion thereof, a resulting or constructive trust in their favor. In order to avoid repetition, the above matter will be considered in the opinion. The trial court found the issues for respondent in respect to all the land in controversy, except the undivided one-seventh interest of Hortense Cummins in the 330 acres aforesaid; and except the S. E. ¼ of the N. E. ¼ of section 16, aforesaid, apportioned to plaintiff, Mary A. Davis, and the children of the latter. The plaintiff, Mary A. Davis, and her children, filed motions for a new trial, which were overruled, and the cause duly appealed by them to this court.

George Hubbert, of Neosho, W. Cloud, of Pierce City, and Horace Ruark, M. E. Benton, and O. L. Cravens, all of Neosho, for appellants. Howard Gray, of Carthage, R. H. Davis, of Joplin, and Leslie D. Rice, of Neosho, for respondents.

RAILEY, C. (after stating the facts as above).

I. The real question for our consideration is to determine what part, if any, of the 530 acres shown upon the blueprint, was held by E. G. Davis, at the time of his death in February, 1912, in trust for his alleged wife Mary C. Davis.

In the oral arguments of the cause in this court, as well as in the exhaustive briefs of the respective counsel, the case has been presented and argued with marked ability. Aside from the large number of exhibits read in evidence, more than 40 witnesses were examined and testified orally, as to the various facts presented by the record. The testimony took a wide range and partially covered the transactions of more than half a century. The main issues herein relate to the financial condition of Elias G. Davis and Mary C. Grimes during the summer and fall of 1882, as well as thereafter, during the time they lived together as husband and wife, until the death of said E. G. Davis.

In November, 1882, said Mary C. Grimes was in possession of 266¼ acres of said 330-acre tract, as her dower interest in the estate of her former husband. She and the two youngest children of L. C. Grimes were then living upon 33¾ acres of said 330-acre tract as a homestead. She continued to occupy said 300 acres until the date of her death in February, 1912.

On November 23, 1882, said Mary C. Grimes and Elias G. Davis, under the forms of law, were married and lived together as husband and wife until the date of his death aforesaid. She died about one week after the death of said Davis. No children were born of this marriage. Said Mary C. Grimes, hereafter referred to as Mary C. Davis, was not aware, up to the time of her death, that said Elias G. Davis. was a married man with an undivorced wife still living. On the contrary, it appears from the evidence that she married him in good faith, believing him to be single, and continued to live with him until the death of the latter, and during all of said period treated him as her lawful husband. The Kentucky wife and some of her children came to Newton county aforesaid, before the death of said E. G. Davis, but concealed from said Mary C. Davis the fact that they were related to him. It clearly appears from the testimony that Elias G. Davis perpetrated and outrageous fraud upon said Mary C. Grimes in concealing from her the fact that he had an undivorced wife in Kentucky and in marrying her under the forms of law, under such circumstances. The evidence discloses that she lived and died under the firm belief that E. G. Davis was her lawful husband.

It may be conceded that the testimony tends to show that E. G. Davis, from the time he came to Newton county in 1869, up to the time of his marriage with Mrs. Grimes, had been buying, shipping, and selling cattle, hogs, mules, etc. It is likewise true that by square dealing with the bank, and persons from whom he purchased stock, he established and maintained a credit, which enabled him to raise the necessary funds to carry on said business. While the foregoing may be conceded to be true, yet the record does not show that he had accumulated either money or property of any consequence at the time of his marriage...