Gwin v. Gwin

• Citation: 219 S.W.2d 282
• Parties: LOU C. GWIN, RESPONDENT, v. FRANCIS GWIN, APPELLANT.
• Decision Date: 07 March 1949
• Court: Missouri Court of Appeals

219 S.W.2d 282

LOU C. GWIN, RESPONDENT, v. FRANCIS GWIN, APPELLANT.

Kansas City Court of Appeals. Missouri.

Opinion delivered March 7, 1949.

Appeal from Circuit Court of Livingston County. — Hon. James W. Davis, Judge.

AFFIRMED WITH DIRECTIONS.

Nolan M. Chapman and Don Chapman for appellant.

(1) Plaintiff's cause of action is founded on a right to her separate property created by Section 3390, Revised Statutes of Missouri, 1939, by virtue of which plaintiff's husband, having taken possession of her separate property without her written assent, was under a duty to deliver said money to plaintiff otherwise the husband, D.C. Gwin, would have been unjustly enriched at the expense of the plaintiff. Smith v. Settle, 128 Mo. App. (l.c.) 382, 383; Rosenberger v. Mallerson, 92 Mo. App. (l.c.) 33; Kerber v. Rowe, 348 Mo. 1125, 156 S.W. 2d (l.c.) 927, 928; Suhre v. Busch, 343 Mo. 679, 123 S.W. 2d 8. (2) Under all the decisions construing a married woman's right to her separate property under Section 3390, Revised Statutes of Missouri, 1939, when her husband received her money without her written assent, plaintiff had a right to elect to sue her husband for debt or to charge him in equity as a constructive trustee. Winn v. Riley, 151 Mo. 61; Hax v. O'Donnell, 234 Mo. App. 636, 117 S.W. 2d 667; Smith v. Settle, 128 Mo. App. (l.c.) 382, 383; Gordon v. Gordon, 183 Mo. 294; In re Deer's Estate, (Mo. App.) 180 S.W. 572. (3) That the plaintiff had a right to sue either at law or in equity is a conclusive test that her cause of action is one to enforce a constructive trust. Johnson v. Smith's Adm'r, 27 Mo. 591; Shortridge v. Harding, 34 Mo. App. (l.c.) 359; Howard County v. Moniteau County, 336 Mo. 295, 78 S.W. 2d 96; Landis v. Saxton, 105 Mo. 486; Shelby County v. Bragg, 135 Mo. 291. (4) Plaintiff's cause of action accrued the very day her husband received her money without her written assent as required by Section 3390, Revised Statutes of Missouri, 1939, because plaintiff then had a right to sue to recover her money. Smith v. Settle, 128 Mo. App. (l.c.) 382, 383; Johnson v. Smith's Adm'r, 27 Mo. (l.c.) 594; Howard County v. Moniteau County, 336 Mo. 295, 78 S.W. 2d 96; Landis v. Saxton, 105 Mo. 486; Bisesi v. Farm and Home Savings and Loan Ass'n, 231 Mo. App. 897, 78 S.W. 2d (l.c.) 874; 54 C.J.S., p. 101, Sec. 159; 54 C.J.S., pp. 155, 156, Sec. 179. (5) The Statute of Limitations operates on a cause of action between husband and wife. Clubine v. Frazier, 346 Mo. 1, 139 S.W. 2d 529; Kober v. Kober, 324 Mo. 379, 23 S.W. 2d (l.c.) 151, 152; 54 C.J.S., pp. 258, 259, Sec. 224; In re Crawford's Estate, (Kan.) 125 Pac. 2d 354. (6) Plaintiff's cause of action was barred by the five year Statute of Limitations, to-wit, Section 1014, Revised Statutes of Missouri, at the time she filed her suit. Smith v. Settle, 128 Mo. App. 379; Johnson v. Smith's Adm'r, 27 Mo. 593; Howard County v. Moniteau County, 336 Mo. 295, 78 S.W. 2d 96; Clubine v. Frazier, 346 Mo. 1, 139 S.W. 2d 529; Landis v. Saxton, 105 Mo. 486. (7) Plaintiff's petition charges her deceased husband (and his estate) with holding property which equitably should be given to her, otherwise the deceased husband's estate will be unjustly enriched at her expense. Such a charge calls for the application of and describes the equitable remedy designated a constructive trust. Kerber v. Rowe, 348 Mo. 1125, 156 S.W. 2d l.c. 928; County of Howard v. County of Moniteau, 336 Mo. 295, 78 S.W. 2d 96; Smith v. Settle, 128 Mo. App. (l.c.) 382, 383. (8) The pleadings and the evidence show that plaintiff was relying only on a constructive trust. Kerber v. Rowe, 348 Mo. 1125, 156 S.W. 2d (l.c.) 928; Smith v. Settle, 128 Mo. App. (l.c.) 382, 383; Howard County v. Moniteau County, 336 Mo. 295, 78 S.W. 2d 96; Johnson v. Smith's Adm'r, 27 Mo. 593. (9) The burden of proof was upon the plaintiff to prove her cause of action by clear, cogent and convincing evidence. Maguire v. Wander, (Mo.) 193 S.W. 2d 900; Suhre v. Busch, 343 Mo. 679, 123 S.W. 2d 8, (l.c.) 19. (10) The rule is the same as to proof by parol evidence of an express trust in personalty. Watson v. Payne, 143 Mo. App. 421; Harding v. St. Louis Union Trust Co., 276 Mo. 136, 207 S.W. 68; Pitts v. Weakley, 155 Mo. 109. (11) Same rule of burden of proof applies to plaintiff relying on a fraudulent concealment or other improper acts to prevent the bar of the Statute. Clubine v. Frazier, 346 Mo. 1, 139 S.W. 2d 529; 54 C.J.S., p. 540, Sec. 395. (12) If plaintiff was relying upon an express or continuing trust to exempt her cause of action from the operation of the Statute of Limitations then the facts should have been pleaded and proven in detail. 65 C.J., p. 231, Sec. 21; Alexander v. Fidelity Trust Co., 215 Fed. (l.c.) 794; Stephenson v. Stephenson, 351 Mo. 8, 171 S.W. 2d (l.c.) 569; Kerber v. Rowe, 348 Mo. 1125, 156 S.W. 2d (l.c.) 929; In re Crawford's Estate, (Kan.) 125 Pac. 2d (l.c.) 357. (13) The facts do not show a technical and continuing trust against which the Statutes of Limitation will not run. Johnson v. Smith's Adm'r, 27 Mo. 591; Shortridge v. Harding, 34 Mo. App. 354; Smith v. Settle, 128 Mo. App. (l.c.) 383; Howard County v. Moniteau County, 336 Mo. 295, 78 S.W. 2d (l.c.) 96, 97, 98; Pollard v. Allen, (Tex.) 171 S.W. 530; Parks v. Satterthwaite, (Ind.) 32 N.E. 82. (14) Under the evidence in the case at bar, the evidence as to the Statute of Limitations being clear, then it was the duty of plaintiff to plead and show facts and circumstances that would prevent defendant from relying on the Statute of Limitations. Shelby County v. Bragg, 135 Mo. (l.c.) 298, 299, 300; City of St. Joseph v. Wyatt, 274 Mo. 566, 203 S.W. 819; Womack v. Callaway County, (Mo.) 159 S.W. 2d 630; Johnson v. United Railways, 243 Mo. 278; 54 C.J.S., p. 540, Sec. 395. (15) The mere fact the plaintiff and D.C. Gwin were wife and husband will not justify an inference of fraud or unfair treatment of wife by husband. Smelzer v. Meier, 271 Mo. (l.c.) 185; Barker v. Barker, (N.D.) 27 N.W. 2d 576, 171 A.L.R. 447; See Horn v. Owens, (Mo.) 171 S.W. 2d (l.c.) 591, 592. (16) Statutes of Limitation are favored in law and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. Shelby County v. Bragg, 135 Mo. (l.c.) 300; Bisesi v. Farm and Home Savings and Loan Ass'n., 231 Mo. App. 897, 78 S.W. 2d (l.c.) 873; Baron v. Kurn, 349 Mo. 1202, 164 S.W. 2d 310. (17) The plaintiff's own evidence showed her cause of action was barred and defendant did not need to offer other proof. 54 C.J.S., p. 539, Sec. 394; State ex rel. Hardt v. Dunn, 235 Mo. App. 196, 129 S.W. 2d 17.

Kitt & Lintner, Randall R. Kitt and Wilder Lintner for respondent.

(1) Sec. 3390, R.S. Mo., 1939, was expressly enacted to prevent the husband from obtaining either title or legal possession of his wife's personal property, by taking the same into his care, custody and protection, unless he obtain her full assent in writing. Broughton v. Brand, 94 Mo. 169, l.c. 174, 175, 7 S.W. 119; Blair v. Railroad, 89 Mo. 383, l.c. 391, 1 S.W. 350; State ex rel. v. King, 73 S.W. 2d 460, l.c. 461. (2) As against her husband, plaintiff was not required to inquire, or keep track of her money and no defense can be predicated on her failure to do so; he owed her the duty of disclosing all material information concerning her money. Gordon v. Eans, 97 Mo. 587, l.c. 600; Morris v. Hansen, 78 S.W. 87, l.c. 94. (3) Mr. Gwin obtained neither title nor legal possession of plaintiff's money by his use, care or custody thereof. His possession was her possession. Sec. 3390, R.S. Mo., 1939; Gordon v. Eans, 97 Mo. 587, l.c. 599; State ex rel. Webb v. King, 73 S.W. 2d 460, l.c. 461; Grocer Co. v. Ballenger, 137 Mo. 369, 28 S.W. 911; State ex rel. v. Jones, 83 Mo. App. 151, l.c. 157. (4) Money in suit would never have become the property of D.C. Gwin, without plaintiff's full consent in writing; even though in his custody, the money was still under her sole control and in her possession. Sec. 3390, R.S. Mo., 1939; Hax v. O'Donnell, 234 Mo. App. 636, 117 S.W. 2d 667, l.c. 671; Hurt v. Cook, 151 Mo. 416, l.c. 428, 52 S.W. 396; Broughton v. Brand, 94 Mo. 169, l.c. 174, 7 S.W. 119; Orr v. St. Louis U. Trust Co., 291 Mo. 383, 236 S.W. 642, l.c. 648; Yates v. Trust Co., 220 S.W. 692; Alkine Grocer Co. v. Ballenger, 137 Mo. 369, l.c. 375, 38 S.W. 911. (5) Burden was upon appellant to prove all facts necessary to establish his defense of Limitations. 37 C.J. 1243, Note 59; Gordon v. Eans, 97 Mo. 587, l.c. 599, 601; Freeland v. Williamson, 220 Mo. 217, l.c. 232, 119 S.W. 560; Pemiscot Co. v. Davis, 147 Mo. App. 194, 126 S.W. 218; Johnson v. Ragan, 265 Mo. 420, 178 S.W. 159, l.c. 166. (6) To establish his defense appellant would have to prove plaintiff's express assent in writing, or that D.C. Gwin claimed her money adversely, to her knowledge. Broughton v. Brand, 94 Mo. 169, l.c. 174, 175, 7 S.W. 119; Gordon v. Eans, 97 Mo. 587. (7) Since Mr. Gwin was in possession of the money in suit, in privity (by force of Section 3390) with the rightful owner, his wife, nothing short of an open and explicit disavowal and disclaim of a holding under that title, and assertion of title in himself brought home to plaintiff, will satisfy the law or lay a foundation for the operation of the Statute of Limitations. Gordon v. Eans, 97 Mo. 587, l.c. 601, 603; Briece v. Bosso, 158 S.W. 2d 463, l.c. 467; Foster v. Petree, 347 Mo. 992, 149 S.W. 2d 851, l.c. 853; Selle v. Wrigley, 233 Mo. App. 43, 116 S.W. 2d 217, l.c. 220, 221. (8) Since parties were husband and wife, Mr. Gwin's manual possession of her money was her title, possession, and sole control. Limitations did not begin to run until he repudiated the relationship to her knowledge. Cunningham v. Kinnerk, 230 Mo. App. 749, 74 S.W. 2d 1114; Koppel v. Rowland, 319 Mo. 602, 4 S.W. 2d 816, l.c. 818; Feis v. Rector, 239 S.W. 515, l.c. 519; Cook v. Hunt, 151 Mo. 416, l.c. 428. (9...