Heil v. Heil

• Decision Date: 13 December 1904
• Citation: 84 S.W. 45,184 Mo. 665
• Parties: HEIL et al., Appellants, v. HEIL
• Court: Missouri Supreme Court

84 S.W. 45

184 Mo. 665

HEIL et al., Appellants, v. HEIL

Supreme Court of Missouri, Second Division

December 13, 1904

Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.

Reversed and remanded.

Eugene Buder for appellants.

(1) The trust established by defendant's answer and evidence is clearly an express trust. Mullock v. Mullock, 156 Mo. 431; Hillman v. Allen, 145 Mo. 638; 27 Am. and Eng. Ency. of Law (1 Ed.), 6; Bispham, Equity, secs. 63-65. (2) An express trust relating to realty can not be established by oral evidence, and defendant can not circumvent the law, by endeavoring to convert it into a resulting trust. The express covenants of the deed to plaintiff can not be overcome by such evidence. R. S. 1899 sec. 3416; Mullock v. Mullock, 156 Mo. 431; Green v. Cates, 73 Mo. 115; Hillman v Allen, 145 Mo. 638; Stevenson v. Crapnell, 114 Ill. 19; Curd v. Brown, 148 Mo. 92; Weiss v. Heitkamp, 127 Mo. 23; 1 Perry on Trusts, sec. 79. (3) An implied or resulting trust can be established only by evidence that is so clear, strong and unequivocal, and so definite and positive, as to leave no room for reasonable doubt as to the existence of the trust. A preponderance is not sufficient. Ringo v. Richardson, 53 Mo. 385; Burdett v. May, 100 Mo. 13; Allen v. Logan, 96 Mo. 591; Roberts v. Walker, 101 Mo. 597; Lewis v. Ziegler, 105 Mo. 604; Taylor v. Von Schraeder, 107 Mo. 206; King v. Isley, 116 Mo. 155; Bradley v. Bradley, 119 Mo. 58; McFarland v. LaForce, 119 Mo. 585; Reed v. Painter, 129 Mo. 674; Curd v. Brown, 148 Mo. 82; Wacker v. Wacker, 147 Mo. 246; Hillman v. Allen, 145 Mo. 638; Mullock v. Mullock, 156 Mo. 431. (4) Equity cases on appeal will be tried de novo, in the appellate courts; the legal evidence alone will be considered, and such judgment and decree entered as is warranted by the facts. Lins v. Lenhardt, 127 Mo. 371; Harlan v. Moore, 132 Mo. 483; Blount v. Spratt, 113 Mo. 48; Palmer v. Crisle, 92 Mo.App. 510; Rice v. Shipley, 159 Mo. 405. (5) (a) From long, unreasonable delay equity will raise the presumption of acquiescence, waiver and abandonment. Tatum v. Holliday, 59 Mo. 426; Gillespie v. Stone, 70 Mo. 516; Schradski v. Albright, 93 Mo. 42; Jones v. St. Louis, 79 Mo. 92; Goodson v. Goodson, 140 Mo. 217. (b) In order to avoid dismissal of a bill on the ground of laches the complainant must set forth therein such equitable considerations as will excuse the laches and explain the delay. Wendover v. Baher, 121 Mo. 291; Hatcher v. Hatcher, 139 Mo. 614; 2 Story, Eq. Jur. (13 Ed.), sec. 771. (6) He who seeks equity must do equity. Pomeroy, Equity Jur., secs. 385-6; Hanson v. Keating, 8 Jurist 950; Case Plow Works v. Ross, 74 Mo.App. 437; Axman v. Smith, 156 Mo. 286. (7) After the cause was revived in the names of the executor and legatees and devisees of deceased plaintiff, there should have been a further trial of the case, and judgment entered without such trial is void. Gauss v. Hussman, 22 Mo.App. 115; Schuster v. Schuster, 93 Mo. 443.

J. P. Vastine for respondent.

(1) The trust established by respondent's answer and evidence is clearly not an express trust. Mullock v. Mullock, 156 Mo. 431; Hillman v. Allen, 145 Mo. 638; 2 Bouvier's Law Dic. (12 Ed.), p. 615; Foster v. Friede, 37 Mo. 36. There is no writing and it is indispensable to an express trust. Mount Calvary Church v. Albers, 174 Mo. 340; Butler v. Carpenter, 163 Mo. 606. When the facts are that the purchase price of the land was paid by one party and the legal title thereto taken in the name of another, a trust by operation of law arises from that fact in favor of the party making the payment, and that, too, in the absence of an express agreement to that effect. If the averments of defendant's answer are true, he is entitled to the relief sought. Butler v. Carpenter, 163 Mo. 604; Richardson v. Champion, 143 Mo. 543. That respondent paid for the ground is clear and the burden was on appellants to overthrow the prima facie case thus made. A distinction exists between contests between grantor and grantee, and a third party and the grantee. Rogers v. Ramey, 137 Mo. 608. (2) The evidence in behalf of respondent more than meets all the demands of the law. (3) As to the defense of laches: A claim of title is never stale while the claimant remains in the actual possession of the premises under color of title or claim of right. The statute of limitations only bars actions for possession and not defenses where the party is in possession. Sebree v. Patterson, 92 Mo. 451. The statute of limitations makes the period of limitation for suit ten years. Hunter v. Hunter, 50 Mo. 445; Zoll v. Carnahan, 83 Mo. 41; Lewis v. Schween, 93 Mo. 31; Burdett v. May, 100 Mo. 20. A meritorious defense is not barred by said statute. Butler v. Carpenter, 163 Mo. 597.

GANTT, P. J. Fox, J., concurs; Burgess, J., absent.

OPINION

GANTT, P. J.

This is an appeal from a judgment of the circuit court of the city of St. Louis. The action is ejectment commenced by Bonifacius Heil in his lifetime for four rooms, kitchen and bath-room on the second floor of a building known as number 2903 South Jefferson avenue in the city of St. Louis, and the two-story stable in the rear of 2901 South Jefferson avenue, said buildings being erected on lot 12 of block 12 of the subdivision of the Lami tract in block 1993 of the city of St. Louis. The ouster was laid as of July 2, 1899, and rents and profits alleged to be of the value of $ 25 a month. Damages in the sum of $ 500 were claimed. The answer is a general denial and the following equitable defense:

"Defendant for his further answer says that he is a son of plaintiff and that, on the twenty-second day of September, 1892, George Ande and wife conveyed by warranty deed the realty described in plaintiff's petition, to-wit, lot number 12 in block number 12 of the third subdivision of the Lami tract, in block number 1993 of said city, to plaintiff by deed recorded October 16, 1892, in book 1105, page 424, recorder's office of said city, for and in consideration of $ 3,286, which conveyance was made at the instance and request of defendant, who alone paid said money to said George Ande, and plaintiff paid no part of said sum, either to said Ande or to defendant, and that prior to the sixteenth of October, 1892, plaintiff had no conversation with defendant and said Ande, or either of them, concerning the purchase of said lot, or as to said lot in any way whatever, and said title was put in plaintiff's name as aforesaid, the plaintiff then, and for some time thereafter being in ignorance of such action and fact, all of which was done by defendant only on the belief of defendant that money could be raised on said lot in the name of plaintiff better than in his own name, and the plaintiff would aid him with his name and credit to secure the erection of buildings on said lot, and for no fraudulent or other purpose, said defendant then and there being a man of some means and wholly free from debt, and plaintiff being then a man of large means, to-wit, fifteen thousand dollars.

"Defendant states that on the second day of March, 1894, he contracted in writing with George M. Roeder, in name of plaintiff, to erect buildings on said lot for $ 9,100, and that Roeder thereafter, per his contract, and prior to October 1, 1894, erected buildings on said lot of the value, to-wit, $ 9,100, said contract being signed by plaintiff, and said work was done under the supervision of defendant, who gave and put into the erection of said buildings of his own money and labor, to-wit:

1904.

Cash,

Thirty-five hundred dollars

$ 3,500.00

and in labor and plumbing, gas-fitting,

electrical work, tin-roofing and galvan-

ized iron work, fifteen hundred dollars,

1,500.00

and paid for street-guttering and side-

walks on said lot in 1894, seven hunded

dollars,

700.00

paid for taxes, state and city, 1892 and

1893,

21.73

and paid for water tax, 1895, 1896 and

1897,

50.00

In all,

$ 5,771.73

"Defendant states that on April 26, 1894, plaintiff and wife executed a deed of trust on said lot of ground to secure the payment of a principal note of sixty-five hundred dollars, payable in three (3) years from said date, and six interest notes, each for one hundred and sixty-five dollars, payable in six, twelve, eighteen, twenty-four, thirty and thirty-six months from said date, to Cath Merz, trustee; said deed is recorded in the recorder's office in book 1213, page 119 -- all of which money went into the payment of the erection of said buildings, said loan and payments being made through and at the instance of defendant.

"Defendant states that, on and prior to the twenty-eighth day of April, 1899, plaintiff paid said deed of trust notes, and on said date he and his wife executed a deed of trust on said realty to secure the payment of a promissory note of seven thousand dollars, payable three years after said date, and six interest notes, each for $ 210, payable 6, 12, 18, 24, 30 and 36 months after said date, which deed is recorded in book 1509, page 189, and is now a lien on said lot.

"Defendant states that in September, 1894, he, with his wife and children, moved into the rooms described in plaintiff's petition, and ever since and now occupies them; that he never paid rent to plaintiff, and plaintiff prior to, to-wit, 5th October, 1898, never asked him to pay any, that he treated said property and buildings as his own, and that the purchase of said lot was made for his benefit and not that of plaintiff.

"Defendant states that plaintiff has collected rents of said buildings from September 1, 1894, to date, and exactly how much he has received, defendant is unable to state, as he does not know but that the rental value thereof, outside of rooms occupied by defe...