Decker v. Fittge

• Decision Date: 14 March 1955
• Docket Number: No. 2,No. 44471,44471,2
• Citation: 365 Mo. 139,276 S.W.2d 144
• Parties: David DECKER, Respondent, v. Erwin H. FITTGE, as Administrator c/t/a of Estate of Erwin Ossing, Deceased, and Norma O. Bramon, Appellants
• Court: Missouri Supreme Court

Page 144

276 S.W.2d 144

365 Mo. 139

David DECKER, Respondent, v. Erwin H. FITTGE, as Administrator c/t/a of Estate of Erwin Ossing, Deceased, and Norma O. Bramon, Appellants.

No. 44471.

Supreme Court of Missouri, Division No. 2.

March 14, 1955.

Louis B. Sher, Donald J. Sher, St. Louis, for appellants.

Cook, Fairfield, Howard & Murphy, Joseph J. Howard, St. Louis, for respondent.

BOHLING, Commissioner.

David Decker, plaintiff-respondent, filed this suit in equity August 13, 1952, against Erwin Ossing to establish a trust in what is known as 3711-13 Kossuth avenue, St. Louis, Missouri, arising out of a tax sale and deed. Erwin Ossing died December 9, 1952. Erwin H. Fittge, as administrator c. t. a. of the estate of Erwin Ossing, deceased, and Norma O. Bramon, his sole beneficiary who holds the legal title to said real estate, were substiuted as parties defendant. The case was submitted on an agreed statement of facts and pleadings were filed to conform thereto. Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331, 335[8, 9]. Plaintiff prayed for a decree vesting title in plaintiff and for general relief. Separate answers were filed by the defendants. The decree was for the plaintiff and defendants have appealed.

That the facts may be more readily understood, we mention that Sec. 141.940(3), RSMo 1949, V.A.M.S., applicable to the tax sale involved, is to the effect, so far as material, that when the combined amount of prior liens for other taxes and the amount of the bid of the purchaser exceeds fifty per cent of the appraised value of the property, the tax sale is to be confirmed and the sheriff is to execute his deed to the purchaser.

In 1945 the City of St. Louis obtained a judgment for taxes on the real estate involved. The custom of the City is to hold such judgments without action until an offer is received for the property. Then the judgment and costs and costs of sale are estimated and a deposit is accepted with the understanding that upon a sale and payment of the balance of any unpaid taxes against the property the deed is to be delivered.

It was the frequent practice of plaintiff-respondent to bid on and purchase property from the City of St. Louis in the above manner. He very seldom took the title in his own name. On several occasions he had purchased property at sheriff's sales and taken the title in the name of Erwin Ossing. Within a few months Ossing and his wife would transfer the title to plaintiff or his nominee. The property in question is the only exception to this procedure.

Plaintiff on May 5, 1950, advised Harry Budde, who handles such matters in the collector's office for the City, that he was interested is buying the property and, upon the costs being estimated at $850, plaintiff delivered his personal check to Harry Budde for $850, with the understanding the balance of the unpaid taxes would be paid upon the delivery of the deed. Execution was ordered and notice for sale on June 14, 1950, was published. On the day of sale, plaintiff, Erwin Ossing, a licensed attorney, and Harry Budde conferred with Edward Linahan, an employee of the sheriff's office in charge of all execution sales, and Budde advised Linahan that plaintiff had made the necessary deposit to bid the property in at the sale . Plaintiff was the sole and highest bidder and bid the property in for $855.51 at the sale conducted by Linahan, in the presence of Budde, Ossing and plaintiff. Plaintiff 'directed said Linahan to make the deed to Erwin Ossing.'

The sheriff's report of sale was duly filed in the circuit court, and the court appointed two disinterested appraisers on June 22, 1950, who, on July 5, 1950, filed their report appraising said real estate at $6,500. Said report of the appraisers was accompanied by a statement of the collector of revenue of the City showing the other general real estate taxes to which the property was subject. The circuit court found that the bid plus the subsequent taxes, etc., exceeded fifty per cent of said appraised value, approved the sale and suthorized the sheriff to execute his deed to Erwin Ossing. The sheriff executed his deed to Erwin Ossing on August 17, 1950, and acknowledged the same in open court on August 22, 1950.

Both plaintiff and Ossing did business with the O. J. McCawley Realty Company. On May 5, 1950, Erwin Ossing sold some real estate through said realty company. On August 29, 1950, Erwin Ossing, without plaintiff being present, brought in his own check for $2,477.97, the amount of the balance of the taxes, penalties, interest, costs, etc., to Harry Budde, received said sheriff's deed, and had the same duly recorded. The $2,477.97 was received by Erwin Ossing from the sale of his property on May 5, 1950. The real estate company mailed the sheriff's deed to Ossing on October 3, 1950.

The O. J. McCawley Realty Company collected the rents for plaintiff on at least ten parcels of real estate. Some of the parcels had been purchased by plaintiff at tax sales and held in the name of Erwin Ossing and were carried on the books of said realty company in the name of Erwin Ossing, with rent checks issued to said Ossing until the parcel was transferred to plaintiff or his nominee. The rent checks on such parcels, so issued to Ossing, were delivered to plaintiff, the owner. The books of the realty company show that the rent checks on the property in suit were remitted to Erwin Ossing prior to his death, and subsequent to his death to Norma O. Bramon; and said books also showed insurance $110.75, repairs $172.30, and taxes, water license and other expense $193.79 charged against Ossing's account. Ossing or his heir paid real estate taxes as follows: 1950, $106.85; 1951, $106.88; 1952, $108.37.

A letter received by Mr. Ossing from plaintiff's attorney is dated July 2, 1952. It mentions that the attorney had written to Mr. Ossing in December, 1951 'with reference to the property sold to you by Dave Decker,' and shortly thereafter had spoken to him about the controversy, and had been informed by Ossing that he preferred to settle it with plaintiff personally, which was agreeable to the attorney. The letter also stated that Ossing had not settled with plaintiff and plaintiff insisted that it be 'cleaned up'; that plaintiff had delivered to the attorney a cashier's check payable to Ossing for the amount Ossing had paid in and a deed to be executed by Ossing conveying the property to plaintiff; and that the attorney would have to follow plaintiff's instructions about suit if the matter was not settled, which the attorney thought 'entirely unnecessary' and desired to avoid.

The record discloses, after adjusting the account between plaintiff and defendants with respect to the real estate involved, that there remains a balance due defendants of $757.97 from plaintiff as of the day of judgment in the event a trust be established, the plaintiff having made a deposit into court of a sufficient sum to pay said balance due defendants.

Plaintiff and defendants present the case on the theory of a resulting trust. Defendants contend plaintiff failed to carry the burden necessary for the decree in plaintiff's favor.

To establish a resulting trust by parol evidence the proof must be so clear, cogent, positive and convincing as to exclude every reasonable doubt of its existence from the mind of the chancellor. Norton v. Norton, Mo., 43 S.W.2d 1024, 1032; Berry v. Hartzell, 91 Mo. 132, 136, 3 S.W. 582.

However, it has been well stated 'that a resulting trust is founded upon 'the natural presumption, in the absence of rebutting circumstances, that he who supplies the purchase money intends the purchase to be for his own benefit, and not for another, and that the conveyance in the name of another is a matter of convenience and arrangement between the parties for collateral purposes.'' Carr v. Carroll, Mo., 178 S.W.2d 435, 436, 437, quoting Condit v. Maxwell, 142 Mo. 266, 274(I), 44 S.W. 467, 469(1). See also Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331, 334[1-3].

'Where a transfer of property is made to one person and a part of the purchase price is paid by another, a resulting trust arises in favor of the person by whom such payment is made in such proportion as the part paid by him bears to the total purchase price unless he manifests an intention that no resulting trust should arise or that a resulting trust to that extent should not arise.' 2 Restatement, Trusts, Sec. 454; Baumgartner v. Guessfeld, 38 Mo. 36, 41; Stevenson v. Smith, 189 Mo. 447, 466, 88 S.W. 86, 91; Wrightsman v. Rogers, 239 Mo. 417, 428, 144 S.W. 479, 482; Hynds v. Hynds, 253 Mo. 20, 35(IV), 161 S.W. 812, 816(IV), 818; Shelton v. Harrison, 182 Mo.App. 404, 405, 167 S.W. 634.

Defendants say that Ossing paid the major part of the consideration; that all of the consideration was paid before the delivery of the deed on August 29, 1950, and that no resulting trust was created by plaintiff theretofore paying the $850 or bidding in the property at the execution sale, stating 'a resulting trust must arise, if at all, at the instant the deed is taken.' Jacobs v. Jacobs, Mo., 272 S.W.2d 185, 189.

The source of the consideration is the foundation of a resulting trust, which has its origin in an agreement implied from the circumstances or established by proof. The trust, however, does not exist by virtue of an agreement. The intention of the parties at or before, not subsequent to, the acquisition of title determines the question of a purchase-money trust or no trust. The intention may be proved by parol. Milligan v. Bing, 341 Mo. 648, 108 S.W.2d 108, 109[1-4]; Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392, 399; Padgett v. Osborne, 359 Mo. 209, 221 S.W.2d 210, 212; Cloud v. Ivie, 28 Mo. 578; Sections 456.010, 456.030, RSMo 1949, V.A.M.S. The evidence of the terms of an oral agreement is offered not for the purpose of establishing an unenforceable express trust but to nullify the intention of a loan or gift and to...