Jacks v. Link

• Decision Date: 31 December 1921
• Parties: FRANCES MARIE JACKS, by LEWIS JACKS, Her Next Friend, Appellant, v. JOHN W. LINK et al
• Court: Missouri Supreme Court

236 S.W. 10

291 Mo. 282

FRANCES MARIE JACKS, by LEWIS JACKS, Her Next Friend, Appellant, v. JOHN W. LINK et al

Supreme Court of Missouri, Second Division

December 31, 1921

Appeal from Platte Circuit Court. -- Hon. Alonzo D. Burns, Judge.

Affirmed.

George W. Day and T. C. Sparks for appellant.

(1) The court erred in admitting the testimony of John W. Link as to the ownership of the purchase money, and in permitting him to testify that he borrowed it from James Madison Payton deceased. Miller v. Slupsky, 158 Mo. 646; Danciger v. Stone, 210 S.W. 865; Rice v Shipley, 159 Mo. 405; Bryant v. Shinnabarger, 227 S.W. 57; McCormick v. Parsons, 195 Mo. 91, 100; Carpenter v. Coats, 183 Mo. 57, 60; Wren v Sturgeon, 184 S.W. 1036; Galvin v. Knights, 169 Mo.App. 496, 513; Coughlin v. Haussler, 50 Mo. 128; Bishop v. Investment Co., 229 Mo. 699, 723; Elsea v. Smith, 273 Mo. 396, 407; Leavea v. Railroad, 171 Mo.App. 24, 266 Mo. 151, L. R. A. 1916D, 810. (2) The court erred in its finding and decree on plaintiff's cause of action that on the whole evidence plaintiff was not entitled to a resulting trust in the land described. Rice v. Shipley, 159 Mo. 407; Fogle v. Pindell, 248 Mo. 74; Freeland v. Williamson, 220 Mo. 232; Stevens v. Fitzpatrick, 218 Mo. 723; Ferguson v. Robinson, 258 Mo. 129; Shaw v. Shaw, 86 Mo. 594; 15 Am. & Eng. Ency. Law (2 Ed.) pp. 1142, 1150; Long v. Long, 192 S.W. 948; Hall v. Hall, 107 Mo. 109; Darrier v. Darrier, 58 Mo. 226; Trust Co. v. Rudolph, 136 Mo. 173; Gunn v. Thurston, 130 Mo. 345; Holman v. Holman, 183 S.W. 623; Brook v. Latimer, 44 Kan. 431, 11 L. R. A. 805, 807; Strode v. Beall, 105 Mo.App. 495; Peabody v. Peabody, 59 Ind. 556; 1 R. C. L. p. 668, sec. 20; Zaring v. Bauman, 223 S.W. 947; Plowman v. Nicholson, 81 Kan. 215; Clowser v. Noland, 133 Mo. 230. (3) The court erred in holding that the purchase money was not furnished by Ardelma Link, wife of respondent John W. Link, as a part of the original transaction of purchase of the respective tracts of land. Authorities cited above.

Guy B. Park and A. D. Gresham for respondents.

(1) The proof in this case falls far short of the kind and character of proof necessary to establish a resulting trust. Evidence to establish a resulting trust must be so clear, strong and convincing as to leave no reasonable doubt in the mind of the chancellor as to the existence of the trust. Williams v. Keefe, 241 Mo. 366; Easter v. Easter, 246 Mo. 409; Waddell v. Frazier, 245 Mo. 391; Deer v. Deer's Estate, 180 S.W. 572; King v. Isby, 116 Mo. 155; Reed v. Spery, 193 Mo. 167; Morris v. Clare, 132 Mo. 232; McKee v. Downing, 224 Mo. 115. (2) There is no evidence that, at the times of the purchase of the lands in question, any advancement was made or intended to be made by her father to Ardelma Link, or that any of her money went into the lands. The money was loaned to John W. Link. In order to establish a resulting trust it is absolutely indispensible that the payment should be actually made by the beneficiary, or that an absolute obligation to pay should be incurred by him, as a part of the original transaction of purchase, at or before the time of the conveyance; no subsequent, and entirely independent conduct, intervention or payment on his part would raise any resulting trust. Weiss v. Heitkamp, 127 Mo. 23; Sell v. West, 125 Mo. 621; Kelly v. Johnson, 28 Mo. 249; Blake v. Blake, 226 S.W. 837. (3) If defendant, John W. Link, was disqualified to testify concerning transactions with deceased, it does not follow that he was not competent to testify concerning other matters. The disqualification imposed by Sec. 5410, R. S. 1919, is not general, but is limited to transactions between the witness and the party then dead. Elsea v. Smith, 273 Mo. 396; Weiermueller v. Scullin, 203 Mo. 466; Hamra v. Orten, 233 S.W. 495. (4) Plaintiff's exhibits and the evidence of witnesses, Coots and Day, relative thereto were not admissible in evidence because they were made in the course of negotiations for a compromise or settlement of the demands made by plaintiff upon defendant. The law favors compromises, and seeks to afford parties full opportunity and free latitude in that behalf by rendering them secure under the principle relevant to privileged communications. Landsbaum v. Realty Co., 226 S.W. 604; Cullen v. Ins. Co., 126 Mo.App. 412; Rusher v. City of Aurora, 71 Mo.App. 418; Sterrett v. Met. St. Ry. Co., 225 Mo. 115; Engel v. Powell, 154 Mo.App. 233, 238. The deed of trust was not signed by defendant. He had not seen it. He did not know its contents. He had not authorized Coots to prepare and submit a deed of trust containing a statement that Ardelma Link had money invested in the lands. (5) But even if the letters and unexecuted deed of trust offered in evidence by plaintiff were admissible for the purpose of showing admissions of defendant Link, at most they show the admissions of a legal conclusion and not facts. A party may admit a fact, but not a legal conclusion. Pitts v. Weakley, 155 Mo. 141; State ex rel. v. Smith, 150 Mo. 75.

OPINION

WALKER, J.

This is a suit brought in the Circuit Court of Platte County to establish a resulting trust. There was a judgment below for the respondents, from which appellant has perfected an appeal to this court.

The appellant -- a minor -- brought this action by her father as next friend against her grandfather, the respondent first named, joining therewith a number of others deemed necessary to a final determination of the matter at issue.

Appellant is the only child and heir of Mallie M. Jacks, deceased, daughter of the respondent John W. Link and his wife Ardelma Link, deceased. The latter was a daughter of James M. Payton, now deceased. This action was instituted in 1919, seventeen years after the death of James M. Payton.

The petition, in equity, contains two counts and prays that one hundred and sixty acres of land in Platte County, the record title of which is in the respondent John W. Link, be impressed with a resulting trust in favor of the appellant as an heir of Ardelma Link, it being alleged that a portion of the purchase price of the land had been furnished by appellant's grandmother, Ardelma Link, in that it had been advanced to John W. Link, her husband, to enable him to purchase the land, by James M. Payton, the father of said Ardelma.

The land was conveyed to the respondent John W. Link by two separate deeds: one, conveying one hundred and forty acres; the other, twenty acres, at different times, and hence the two counts in the petition. It is claimed that of the purchase price of the one hundred and forty acre tract, seven hundred dollars of same was advanced by James M. Payton to his daughter Ardelma Link and that nine hundred and fifty dollars, advanced in like manner, was used in the payment for the twenty acres.

The relevant facts will be stated in their order in the discussion of the assignments of error.

It is contended that error was committed in the admission of the testimony of John W. Link as to the ownership of the purchase money of the land and in permitting him to testify that he borrowed it from his father-in-law, James W. Payton. This contention may be disposed of under the general rule that where improper testimony has been admitted in an equitable proceeding in which we are required to review the entire record, the judgment will not be reversed on that ground, but the incompetent testimony will be disregarded and such a judgment rendered as in equity and good conscience the pleadings and evidence may authorize. [Bryant v. Shinnabarger, 227 S.W. 54 and cases p. 57; McKee v. Downing, 224 Mo. 115, 124 S.W. 7; McCormick v. Parsons, 195 Mo. 100, 92 S.W. 1162 and cases; Rice v. Shipley, 159 Mo. 407, 60 S.W. 740; Miller v. Slupsky, 158 Mo. 643, 59 S.W. 990.]

Regardless, therefore, of the errors that may have been committed by the trial court in its rulings upon the admissibility of the testimony, the case is before us for review and determination upon whatever evidence of probative force appears in the record.

Lewis Jacks, the father of the appellant, testified that John W. Link came to his (witness's) home in 1901, while James M. Payton was staying there and said to the latter that he wanted to get seven hundred dollars to pay on the Burkhead land (in controversy), which he, Link, was about to purchase.

There was testimony that this amount of money was soon thereafter obtained by John W. Link from James M. Payton, and that the former gave his note to the latter for the amount stated.

George W. Day, counsel for the appellant, testified that sometime before this suit was brought he wrote to John W. Link, who came to his office and they had a talk about the matter involved in this controversy. Witness's testimony is substantially as follows "I can't repeat all the conversation we had there, but Mr. Link told me that I should go and see Judge Coots" (the Probate Judge of Platte County) "and whatever he said was right for him to do, he would do. Further than that, we discussed the merits of the matter in a general way, and Mr. Link denied that there was any obligation on his part to the young lady, Frances Marie Jacks, the plaintiff. Sometime after that I saw Judge Coots and had a talk with him about the matter; I can't state all or perhaps even the substance of what was said. Mr. Link was not present during that conversation. The conversation with Mr. Link was in connection with settling this controversy. Judge Coots told me that as he viewed the matter there was a resulting trust in favor of this plaintiff, growing out of the fact that Mrs. Link's money had gone into this land, and he asked me to write a letter to Mr. Link, asking him to call upon him (Judge Coots), and that he would let me hear from...