Hunnell v. Zinn

• Decision Date: 31 March 1916
• Docket Number: No. 17693.,17693.
• Citation: 184 S.W. 1154
• Parties: HUNNELL et al. v. ZINN et al.
• Court: Missouri Supreme Court

184 S.W. 1154

HUNNELL et al. v. ZINN et al.

No. 17693.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by Ida M. Hunnell and another against R. D. Zinn and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

This is an action in equity, the object of which was to have a resulting trust decreed in favor of plaintiffs in certain lands situate in Lawrence county, the legal title of which was in defendant R. D. Zinn. From a decree nisi, refusing the relief prayed for and dismissing their bill, plaintiffs have appealed. Since the case has been pending here Leah A. Grissom, one of the appellants, has departed this life, suggestions of which fact coming in, her legal representatives have been duly made parties herein and have entered their appearances.

Plaintiffs, Ida M. Hunnell and said Leah A. Grissom, were daughters of one Peter Zinn, deceased. Defendant R. D. Zinn was a son of said Peter Zinn, and defendants Alberta Zinn, Della Zinn, Prussia Zinn, and Elmore Zinn are the children and heirs at law of one Elmore J. Zinn, deceased, who was likewise a son of Peter Zinn, and defendant Elizabeth Zinn is the widow of said Peter Zinn (hereinafter called Peter, for brevity).

No point is made touching the form of the petition here. That such point could have been made is therefore beside the question. This petition is brief, but no necessity exists for cumbering the record with it. Stated essentially, it avers that the legal title to the south half of the northeast quarter and the west half of the southeast quarter of section 23, in township 26 and range 27, situate in Lawrence county, Mo., is in the name of defendant Rezin D. Zinn (hereinafter for brevity called Rezin); that the value of said land is $10,000, and that the said Peter was, and was in his lifetime treated as, the equitable owner of said lands, or of a part thereof, by reason of the fact that the said Peter had furnished $2,000 of the $4,800 paid as the purchase price of said land, but that the title thereto was placed in the name of said Rezin. There is a further averment that in the lifetime of said Peter he made large and valuable advancements to the defendants and to each of them, far exceeding the advancements made to plaintiffs, or to either of them. But no further details are furnished by said petition touching the nature of said advancements. The prayer is that the court ascertain and determine what are the rights of the heirs of said Peter in and to said lands, and that said Rezin be declared to be a trustee thereof for the heirs at law of the said Peter, deceased, in the proportion that the sum paid by the latter bears to the whole purchase price, and to require plaintiffs and defendants to bring into hotchpotch the several advancements received by them, and for all proper relief. The answer of Rezin was a general denial, a claim of ownership in fee simple of the lands described in the petition, and a prayer that the court ascertain, determine and adjudge defendant's title therein as against plaintiffs. The other defendants, including those who were infants and who answered by guardian ad litem, answered by general denials.

The judgment found the issues for the defendants, and found and declared that the title to the real estate above described was vested in fee simple in said defendant Rezin, and that plaintiffs, nor either of them, had any right, title, or interest therein. Touching the other, or advancement phase of the case, if any such phase there be, no reference is made in the judgment, and no substantial reference was made as to this upon the trial of the case.

The sole theory of the case as it was tried turned upon the question of whether the title to the 160 acres of land described above and admittedly as to the paper title thereof in Rezin was held by him (to the extent of the $2,000 paid by Peter) in fee, or as an equitable estate. Touching the matter of advancements to the other defendants, there are neither sufficient allegations in the petition nor sufficient proof in the record, not to mention an entire lack of reference to that point in the judgment. We will treat the case here therefore as it was treated by the parties below, and devote our entire consideration of it to the question of the creation in Rezin of a resulting trust in the land in dispute.

The said Peter, ancestor of all of the parties to this action, died in Lawrence county in 1912, and shortly before this suit was commenced, leaving surviving him the two daughters, one son, said Rezin and certain grandchildren, all but one of whom are minors and are represented herein by their guardian ad litem, and who, as already stated, are the children of another son, one Elmore Zinn, who died before the death of Peter. Peter had been twice married. At a date, not definite and not of the essence here, he was divorced from his first wife. Later they were remarried, but again later, they separated and were finally divorced. Upon one of the separations, which one is immaterial here, a division of the property up to that time accumulated by them was made, and Peter seems to have given to his wife, who is apparently the mother of all of his four children who are represented here, 100 acres of land at least, perhaps more. This division, as witnesses throughout the record quote him as saying, "put him rather heavily in debt," and he told his son Rezin and his son Elmore that if they would stay with him he would give them all of his remaining property. Some nine years before Peter's death his son Elmore died; thereafter Peter conveyed to defendants Alberta Zinn and Della Zinn each 80 acres of land, and to Prussia Zinn 40 acres of land, retaining in the last two conveyances the right of use and control and in the one first mentioned two-thirds of the crops and rents thereof, during his life. To the defendant Elmore Zinn, Jr., he gave nothing, since the latter was a posthumous child, and born apparently after the making of the above conveyances. To Rezin he likewise conveyed at one time 120 acres of land, besides that in controversy here. These four last-mentioned conveyances are possibly the matters of advancements so meagerly referred to in plaintiffs' petition.

The tract of 160 acres forming the crux of this action, and which alone was dealt with in the proof and judgment, was purchased from one Arch L. Simms. The proof is conclusive that Peter paid of his own money the sum of $2,000 on the total purchase price of $4,800 for this land. When doing so he said to Simms, the grantor, that he (Peter) was going to pay part of the purchase price, but that he wanted the deed made to Rezin and not to himself. Upon being asked by Simms why he desired to do this...