Ham v. Ham, 36003

• Decision Date: 28 May 1985
• Docket Number: No. 36003,36003
• Citation: 691 S.W.2d 944
• Parties: Elizabeth L. HAM, Respondent, v. Frank W. HAM, Frank W. Ham and Lelah G. Ham, husband and wife, Appellants.
• Court: Missouri Court of Appeals

Page 944

691 S.W.2d 944

Elizabeth L. HAM, Respondent, v. Frank W. HAM, Frank W. Ham and Lelah G. Ham, husband and wife, Appellants.

No. 36003.

Missouri Court of Appeals Western District.

May 28, 1985.

Terrence C. Porter, Columbia, for appellants.

Thomas M. Schneider, Jones, Scott & Schneider, Columbia, for respondent.

Before SOMERVILLE, P.J., and KENNEDY and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

The judge found a resulting trust, constructive trust, and an express oral trust in this real estate matter. On appeal only the conclusion of a resulting trust is examined, since if the trial court's judgment is sustainable on any grounds it is to be affirmed. Drydale v. Kiser, 413 S.W.2d 506, 507 (Mo.1967); Connell v. Baker, 458 S.W.2d 573, 577 (Mo.App.1970). The burden is on the party seeking the establishment of a resulting trust, and proof must be by clear and convincing evidence to exclude all doubt from the mind of the court. Dallas v. Dallas, 670 S.W.2d 535, 538 (Mo.App.1984). Review is under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and Rule 73.01.

The respondent Elizabeth Ham (Bette) and appellant Frank William Ham (son) were husband and wife in August 1963 when appellant Frank Wilbur Ham (father) and his wife, since deceased, signed a contract to buy the house in question. The price was $16,500, father paid $1000 down plus later another $2300 in September 1963 and for some landscaping fees. The father and his wife signed the note for the balance in the amount of $13,200. The note was for 20 years at 6% interest and payments were approximately $120 per month. Taxes and insurance were made through the bank. The property, a residence, was deeded to father and his spouse on September 5, 1963. In August 1963 the son, Bette and their children moved into the house. The son moved out in February 1976 when he and Bette were divorced. She remains in the house. The son and Bette did not have the money or credit to make such a purchase. The payment book was given to son and Bette and they have made all payments on the note, except for $1000 paid by the father when his son and daughter-in-law were behind. Since February 1976 the son has made the note payment. As of January 1984 there was a loan balance of $9,760--the house had a market value of $45,000 leaving equity at approximately $35,000.

Bette filed this suit asking a resulting trust be declared for the benefit of her and the son and therefore subject to being set off under the separation agreement and decree of dissolution.

It was stipulated the father and his wife took interest and tax deductions on their income tax returns from 1963 through 1983. They never reported any rental income from the property.

The father testified he thought the house was a good buy and wanted his son and daughter and their family to have a house instead of an apartment, and "they could live there for what the monthly payment was and at such time as they could come up with what I had in the house I would turn it over to them." This statement of agreement was made before closing to his wife and to his son and daughter-in-law. It was corroborated by Bette and the son. Bette said the father agreed to convey title to the couple when he got his money back. There was never any mention made at the time title was taken about a rental agreement. The insurance was in the name of Bette and her husband for the approximately 20 years they made payments. The couple was to and did maintain the house. The father admitted he never expected this arrangement to go on for 20 years, nor the dissolution of marriage, and began changing his mind about the ownership of the house when the divorce occurred. In 1980 the son attempted to re-finance the house.

The judgment divested the father of title and put it in the name of Bette and the son pursuant to the dissolution decree with the father to be reimbursed for all he had paid on the property in the total amount of $4,300. The father was to be held harmless on the note secured by the deed of trust.

Of particular note is that the facts here differ from most of the appellate decisions where a resulting trust is found. Many of the Missouri cases relied upon by the parties, involve a child who furnishes the purchase money, and for reasons of convenience or minority the title is taken in the parents. E.g. Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 614-15 (1941), creating a presumption of a purchase money resulting trust in the child as opposed to a gift. See also Hergenreter v. Sommers, 535 S.W.2d 513, 515, 519 (Mo.App.1976). Here the parents paid the down payment and were obligated on the note and deed of trust, but the children made all the payments. There was evidence from a parent, a child and a daughter-in-law that the parents would hold the title for...