Garrett v. Garrett
| Decision Date | 24 December 1902 |
| Court | Missouri Supreme Court |
| Parties | GARRETT v. GARRETT. |
2. In a suit to establish a resulting trust in favor of a ward in land purchased by his curator in his wife's name, it was admitted that the curator deposited in his own name, in a bank where he had no money on deposit, a sum realized from mortgaging certain land, the title to which was in his name, and that he paid for the land in question by a check drawn on the bank. The wife claimed that she was the owner of the land mortgaged, while plaintiff claimed that the curator was the owner. Held that, even conceding that evidence of the declarations of the curator that he used the ward's money in the purchase of the land in question was sufficient to create a resulting trust, the admitted facts showed that no part of the ward's money was used in such purchase, and whether the curator or his wife was the legal owner of the land mortgaged was immaterial, so far as the ward's rights were concerned.
3. Evidence that a curator had commingled the money coming into his hands as curator with that of his own is insufficient to establish a resulting trust in land purchased by the curator from a particular fund, which had not been commingled with any other funds belonging to the curator, or to the curator and his ward.
4. The only testimony that the ward's money was used in the purchase of the land was the evidence of the declarations of the curator that he had used a certain part of the ward's money in the purchase thereof. Held, that a judgment against the wife for a designated sum in favor of the ward, reciting that it was a lien on the land in question, was unauthorized by both the pleadings and the facts.
Appeal from circuit court, Sullivan county; Jno. P. Butler, Judge.
Suit by Harvey Garrett, by John W. Halliburton, curator, against Susan R. Garrett. From a decree for plaintiff, defendant appeals. Reversed.
D. M. Wilson, for appellant. Childers Bros., for respondent.
This is a suit in equity by the curator of Harvey Garrett, a minor, to establish a resulting trust in an undivided one-fourth of 160 acres of land in Sullivan county, and to devest the title thereto out of the defendant and vest same in plaintiff, which the petition alleges was purchased by the defendant's husband, Jesse Garrett, the minor plaintiff's former curator, with his ward's money, and the title thereto taken in the name of defendant, his then wife. The answer admits the curatorship, defendant's marriage to Jesse Garrett, and the latter's death in November, 1893, and that during her husband's curatorship he had received certain money belonging to his ward, as set out in the petition, and then averred that the land in question had been purchased by her husband with her own money, and the deed taken in her name, and that she claimed it as her sole and separate property. The answer further averred that the money so paid by her husband for said land was obtained as the result of a mortgage which she and her husband had executed on 160 acres of land in Adair county, in this state, then standing of record in the name of her husband, but which land was in fact the property of herself, and had been purchased with money derived from the sale of 80 acres of land in Sullivan county, one 40 of which had been given to her by her father, and the other 40 she had bought from her brother with her own money, and then denied generally the other allegations of the petition. There was a finding and judgment in the circuit court to the effect that plaintiff have judgment against defendant in the sum of $349.50, and that same is declared a lien on the land in suit (describing it), and that said land be ordered sold to satisfy said judgment, etc., from which judgment the defendant has appealed, and brought the case here for review.
It is contended by appellant that the evidence offered in the case was wholly insufficient to support any judgment, and that the judgment as rendered was not authorized by either the pleadings or the facts, however the facts of the case be considered.
The facts shown were that in 1890 the defendant's husband, Jesse Garrett, was by the probate court of Sullivan county appointed curator of the estate of the minor plaintiff herein, Harvey Garrett, and as such duly qualified, and took charge of the moneys and property belonging to the estate of said minor, and continued to make settlement with the court, in which he charged himself as such curator with the amounts of money and property so received until his death, in November, 1893, as follows:
On November 11, 1890, Jesse Garrett filed with the probate court an inventory of the property collected from his predecessors, belonging to the estate of his ward, showing that he had received in notes and cash $404.90, and two houses.
—And that on July 10, 1893, he made and filed with the probate court, in obedience to an order of the judge thereof, a sworn report stating how his ward's money was invested, in which report it was shown that he then held one note of McKinney for $82.20, dated July 6, 1891; one note of Stokes for $100, dated February 1, 1891; cash on hand, not loaned, $100; and cash that he was using, $208.15.
After the death of Jesse Garrett, in November, 1893, the defendant found among her papers the two last-named notes, which she turned over to the present curator, the plaintiff in this action; and this was all the plaintiff, as present curator, ever got from the estate of Jesse Garrett. It was also shown by plaintiff that Jesse Garrett at the time of his death was insolvent, as were also the sureties on his curator's bond. It was also shown that by the death of Jesse Garrett's mother, in 1888, he and his brothers James, William, and the plaintiff, Harvey Garrett, —the latter being the only heir of Hugh Garrett, deceased, who was a brother of Jesse Garrett,—each acquired an undivided one-fourth interest in the land in controversy, situate in Sullivan county, in this state, and that in April, 1893, Jesse Garrett went to Henry county, in this state, and bought his brother James' undivided one-fourth interest in this Sullivan county land for $350, and had the deed to that interest made to his wife, the defendant herein; that on July 19, 1893, Jesse Garrett, in conjunction with his wife, conveyed his undivided one-fourth interest in said land, inherited from his mother, to one C. A. Hague, by quitclaim deed, and on the same day Hague, by a like deed, conveyed the same interest to the defendant, and that on same day Jesse Garrett had conveyed to his wife, the defendant herein, through the same medium, C. A. Hague, 160 acres of land in Adair county, which stood of record in the name of said Jesse Garrett; and that no consideration was actually paid at that time by said defendant to Jesse Garrett for said conveyance to her.
Over the objection of defendant, one William Yardley, a witness called by plaintiff, was permitted to testify to a conversation he had with Jesse Garrett regarding the purchase of the one-fourth interest in the land in controversy, sought to be charged by this proceeding. Yardley testified as follows: ...
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