Freeland v. Williamson

• Decision Date: 18 May 1909
• Citation: 119 S.W. 560,220 Mo. 217
• Parties: FREELAND v. WILLIAMSON et al.
• Court: Missouri Supreme Court

119 S.W. 560

220 Mo. 217

FREELAND v. WILLIAMSON et al.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

1. APPEARANCE (§ 24) — EFFECT — DEFECTS IN SERVICE OF PROCESS — WAIVER.

Defendants, who appeared and answered and contested the case without objection, cannot attack the service of process as to themselves.

2. APPEAL AND ERROR (§ 1172) — DISPOSITION — REVERSAL — REVERSAL IN PART.

The doctrine that a judgment is entire and cannot be reversed as to a part of the parties does not apply to equity cases, so that, in a suit to establish a trust against a number of defendants, a part of defendants who appeared and contested the case cannot require a reversal of a decree for complainant because other defendants were not properly served; the objecting defendants not being affected thereby.

3. WITNESSES (§ 65) — COMPETENCY — HUSBAND AND WIFE — RIGHT OF WIFE TO TESTIFY.

In a suit by a wife to establish a resulting trust in land purchased with her money, to which title was taken in her deceased husband's name, the wife is competent to testify in her own behalf; her right not depending upon any contract with her husband.

4. APPEAL AND ERROR (§ 204) — OBJECTIONS — ADMISSION OF EVIDENCE — FAILURE TO OBJECT — EFFECT.

Where no objection was made or exception saved to the admission of evidence, the objection cannot be made on appeal.

5. ESTOPPEL (§ 52) — "EQUITABLE ESTOPPEL" — ELEMENTS.

To constitute an equitable estoppel, the false representation or concealment of facts must have been made or done knowingly by the party estopped, and his conduct relied upon and acted upon by the one claiming an estoppel to his injury.

6. TRUSTS (§ 89) — RESULTING TRUSTS — SUFFICIENCY OF EVIDENCE.

In a suit to establish a resulting trust in land claimed to have been purchased by complainant's husband with money furnished for complainant by her father and title inadvertently taken in the husband's name, evidence held to show that complainant's father furnished the money to purchase the land for her, which her husband and defendants knew, and that title was taken in the husband's name without complainant's knowledge.

7. TRUSTS (§ 76) — RESULTING TRUSTS — PAYMENT OF PURCHASE MONEY.

Where complainant's father furnished money to purchase land for her, which her husband and their children knew, but title was taken in her husband's name, which she did not know until just before suing to establish a trust therein, complainant could establish a resulting trust in the land in an action against the children on her husband's death.

8. LIMITATION OF ACTIONS (§ 102) — RESULTING TRUSTS — ACTIONS TO ESTABLISH.

Limitations do not begin to run against an action to establish an implied trust until the facts are brought to the beneficiary's knowledge so as to enable him to enforce the trust.

9. LIMITATION OF ACTIONS (§ 195) — BURDEN OF PROOF.

One relying upon the statute of limitations as a defense must bring his case within it by evidence.

10. TRUSTS (§ 89) — RESULTING TRUSTS — WEIGHT OF EVIDENCE.

In an action to establish a trust in land claimed to have been purchased with the money furnished by complainant's father for the purpose of purchasing it for complainant, but title to which was taken in her husband's name, that complainant, as her husband's administratrix, listed the land in the inventory of her husband's estate and was allowed credits for taxes paid thereon, should not have much weight against clear and undisputed evidence that the land was purchased for her with her father's money advanced for that purpose.

Appeal from Circuit Court, Holt County; W. C. Ellison, Judge.

Action by Joannie Freeland against Frances Williamson and others. From a judgment for plaintiff against all except two of defendants, a part of the defendants appeal. Affirmed.

T. C. Dungan and Jno. W. Stokes, for appellants. R. B. Bridgeman, Charles F. Booher, and John Kennish, for respondent.

GANTT, P. J.

This suit was instituted by the respondent, Joannie Freeland, widow of John H. Freeland, to establish a resulting trust in plaintiff in an 80-acre tract of land described in the petition. The defendants are the eight children of the plaintiff and her said husband, together with the husbands of the married daughters. Two of the defendants, Aretha Swan and her husband, after the death of John Freeland, and before the institution of this suit, had conveyed the supposed undivided interest of the said Aretha Swan in the land in controversy by trust deed to J. E. Weller, as trustee, to secure a loan made to said Aretha Swan and her husband by Charles Chase, the beneficiary of said trust deed, and Weller and Chase were also joined as defendants. The suit was brought in the circuit court of Holt county to the August term, 1905, and at the January term, 1906, of said court, the cause was tried and a decree rendered divesting defendants, except as to Weller and Chase, of all right, title, and interest in and to said land, and investing the same in plaintiff, as prayed in the petition. Of the eight children and defendants, only three daughters and their husbands contested the suit in the trial court, and these, also, alone appealed from the judgment and decree rendered to this court.

It is alleged in the petition that the plaintiff and John H. Freeland, deceased, were married in the year 1862, and that eight children were born of the marriage, who, with the husbands of the married daughters, are named as defendants; that in the year 1869 plaintiff's father, Andrew Miller, for the purpose of providing the plaintiff, his daughter, with a home and means of support, sent the sum of $600 to one John Spencer, with instructions to invest the same in land as a home and for the use and benefit of the plaintiff, his daughter; that, pursuant to said instructions, the 80-acre tract of land in controversy was purchased with $550 of said sum, but that by mistake and error the deed was made conveying title to John H. Freeland, plaintiff's husband; that the said John H. Freeland paid no part of the purchase price of said land; that the said John H. Freeland with his family continued to occupy, use, and enjoy the said land until his death, on the 20th day of January, 1903; that neither plaintiff nor her father at any time consented or gave authority that the title to said land should be vested in the said John H. Freeland, and that it was always understood by and between plaintiff and her said husband during his lifetime that the said land was the property of plaintiff and of right belonged to her.

It is also alleged that one of the said children, to wit, Aretha Swan, and her husband, after the death of her father, conveyed her undivided interest in said land to James E. Weller, as trustee for Charles Chase, to secure a loan made by the latter to the said Aretha Swan and her husband. It is also alleged that the defendant Grover Freeland was a minor, and plaintiff prayed the court to appoint a guardian ad litem to protect and defend the interest of the said Grover Freeland in the suit.

The prayer of the petition was that the defendants be divested of all right, title, and interest in the 80-acre tract of land therein described, and that the same be vested in the plaintiff.

It is further alleged in the petition that three of the heirs, to wit, Frances Williamson and John Williamson, her husband, Laura McMillen and A. V. McMillen, her husband, and Lucy Van Dyke and William Van Dyke, were nonresidents of the state, and prayed that a special summons of process be served on them, as provided by law. Affidavits of nonresidence were filed with the petition as to said nonresident defendants.

Frances Williamson, Ella Craytor, and Aretha Swan, and their respective husbands, filed separate answer containing several defenses: (1) Denying that plaintiff or her father furnished the money to purchase the land in controversy, or any part thereof, and denying that the deed to said land was by mistake made conveying title thereto to John H. Freeland, and alleging that the money and funds used in the purchase of said land were the property of and furnished by the said John H. Freeland. (2) That defendants Aretha Swan and her husband conveyed the undivided interest of the said Aretha Swan to J. E. Weller, as trustee, to secure a loan made by Charles Chase to the said Aretha Swan, and that such conveyance in trust was made in good faith and without knowledge of any claim of title or right by plaintiff. (3) A defense in the nature of an estoppel, on the ground that plaintiff had qualified and acted as administratrix of her husband's estate, and, as such, inventoried and treated the land in controversy as belonging to the estate of her late husband. (4) That John H. Freeland, deceased, purchased certain town property in the town of Maitland, and that such property was deeded to plaintiff in satisfaction of all claims of plaintiff against her husband. (5) That, by reason of the long lapse of time since the creation and establishment of the alleged trust, plaintiff was precluded from asserting her rights against the defendants therein. (6) A defense of the 10-year statute of limitations, the 24-year statute of limitations, and that more than 3 years had elapsed after any disability that plaintiff may have had, had been removed.

James E. Weller and Charles Chase filed separate answer, alleging that the loan had been made to the defendants, and secured by trust deed, as heretofore stated.

A guardian ad litem was appointed by the court to represent the minor defendant Grover Freeland, and it is shown in the record that the said minor defendant arrived at his majority before the trial, and personally appeared and defended in his own right.

The defendants Edith Freeland, Rhoda Freeland, and Lucy Van Dyke did not file answer, but were present at the trial and testified as witnesses in behalf of the plaintiff, their mother.

The evidence on the part of the plaintiff tended to prove that her...