Jacobs v. Jacobs, 43999

• Decision Date: 08 November 1954
• Docket Number: No. 43999,No. 1,43999,1
• Citation: 272 S.W.2d 185
• Parties: Paul JACOBS, Appellant, v. Helen Ann JACOBS, George R. Hunsche, K. E. Harbison and Norma Barrow, Respondents
• Court: Missouri Supreme Court

Page 185

272 S.W.2d 185

Paul JACOBS, Appellant, v. Helen Ann JACOBS, George R. Hunsche, K. E. Harbison and Norma Barrow, Respondents.

No. 43999.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1954.

Silas E. Garner, St. Louis, for appellant.

Cobbs, Blake, Armstrong, Teasdale & Roos and Henry C. M. Lamkin, St. Louis, for respondent.

DALTON, Presiding Judge.

Action in equity to establish a resulting trust in described real estate in the City of St. Louis and for other relief. The trial court sustained a motion to dismiss plaintiff's first amended petition for failure to state facts upon which relief could be granted. Judgment of dismissal was entered and plaintiff has appealed.

Plaintiff's first amended petition alleged that he was lawfully married to defendant Helen Ann Jacobs in the City of St. Louis in 1932; that she was still his lawful wife; that on or about February 5, 1944 with his own funds, obtained from the settlement of a personal injury suit, he purchased and made the down-payment on the described real estate in the City of St. Louis; that he signed the installment notes and mortgage for the balance of the purchase price of said real estate and caused the record title to be placed in the name of Helen Ann Jacobs, his wife; that, at the time the title was so placed, there was no intention to make a gift to his said wife; and that he caused the record title to the property in question to be placed in the name of Helen Ann Jacobs, his wife, 'merely as a straw for convenience with no intention at any time of relinquishing the title nor to vest title in Helen Ann Jacobs in her individual property.' While it is not expressly alleged that the installment notes for the balance of the purchase price and the 'mortgage' to secure the same were also signed by Helen Ann Jacobs, his wife, in whose name he had placed the legal title to the property, we think that inference could be drawn from the allegations in the petition. In fact the appellant has so construed these allegations in that he says the facts alleged therein are that, 'The purchase of said property was on the down-payment--installment plan; Paul Jacobs with his own money made the down-payment. Paul Jacobs and Helen Ann Jacobs, his wife, signed the deferred payment notes and the mortgage on said property to secure said notes.'

It was further alleged that plaintiff paid all of the installment notes which evidenced the deferred payments on the purchase price and all expenses incident to the purchase of the property, until only a balance of $400 remained unpaid; that, on May 6, 1952, the plaintiff and his said wife obtained a $2,000 loan on said property and executed notes and secured said notes by a deed of trust on the property and from the proceeds of said loan paid off and discharged the $400 balance due on the purchase price of the property; and that, since said date, the plaintiff had paid all installments of principal and interest on the said new indebtedness. The trustee and beneficiary in this last deed of trust were made defendants in the cause but no relief was asked as to them and the validity of the lien of the deed of trust was conceded.

It was further alleged that the purpose of obtaining the $2,000 loan was to repair the property and that after the payment of the balance due on the purchase price of the property and other items, the defendant Helen Ann Jacobs, without plaintiff's knowledge or consent, collected the balance of said loan in the sum of $1,400 and left the City of St. Louis with the four children of plaintiff and defendant.

Plaintiff further alleged that on January 29, 1953, and after the filing in the recorder's office of said city of a notice of lis pendens concerning this action, the defendant Helen Ann Jacobs, without the knowledge or consent of plaintiff, attempted to convey the described property to one Norma Barrow. The said Norma Barrow was joined as a defendant in this proceeding.

It was further alleged that Helen Ann Jacobs had 'absconded with the money,' being the balance of the proceeds of the $2,000 loan; and that plaintiff had been 'defrauded and cheated and that he has no adequate remedy at law.'

Plaintiff prayed for a finding that his own funds paid for the described property; that Helen Ann Jacobs held title to the property in trust for plaintiff; that the original deed of conveyance to Helen Ann Jacobs be cancelled and the fee simple title to the described property be vested in plaintiff; that the deed of trust securing the $2,000 loan be 'not affected by the cancellation of the deed' to Helen Ann Jacobs; and that the deed of Helen Ann Jacobs to Norma Barrow executed after the institution of this action and after the filing of the lis pendens notice be cancelled and set aside.

Respondent has moved to dismiss the appeal for failure to comply with 42 V.A.M.S. Supreme Court Rule 1.08(a), (b), and (c). Appellant's brief is subject to criticism, but we have reached the conclusion that the motion to dismiss should be overruled, and it is so ordered.

Appellant assigns error on the court's action in sustaining the motion to dismiss his said first amended petition for 'failure to state a claim upon which relief can be granted.' See Section 509.300 RSMo 1949, V.A.M.S. Appellant in effect insists that the petition sets forth a claim for relief and contains 'a short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled.' Section 509.050 RSMo 1949, V.A.M.S. While no particular kind of trust is mentioned in the petition cases dealing with resulting trusts are cited in support of appellant's contention that his petition is sufficient.

It is well settled that a motion to dismiss a petition admits, for the purpose of the motion, the truth of all facts well pleaded therein and any inferences fairly deducible from the facts stated, and we construe the petition favorably to the plaintiff giving him the benefit of every reasonable and fair intendment in view of the facts alleged. Martin v. Potashnick, 358 Mo. 833, 217 S.W.2d 379; Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572, 574; Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo.Sup., 246 S.W.2d 742, 744.

The question presented is whether the facts stated invoke the application of principles of substantive law which would entitle plaintiff to the relief he seeks. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 1252, 194 S.W.2d 25, 28(4-7). Neither in oral argument, nor in the appellant's brief has there been any suggestion that the facts stated in the petition could support a claim for relief on any theory except on the theory of a resulting trust.

'A resulting trust, as distinguished from an express trust, is one implied by law from the acts and conduct of the parties and the facts and circumstances which at the time exist and attend the transaction out of which it arises.' Little v. Mettee, 338 Mo. 1223, 93 S.W.2d 1000, 1009(8, 9).

'As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless it was the payor's intent that no such trust should arise; but the presumption of a resulting trust is rebuttable. * * * This presumption is based upon the sound principle that, absent evidence to the contrary, it is not the intent of any such payor to make a gift to the grantee.' Ferguson v. Stokes, Mo.Sup., 269 S.W.2d 655, 656, 659. And see Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981, 988; Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331, 334; James v. James, Mo.Sup., 248 S.W.2d 623, 627; Carr v. Carroll, Mo.Sup., 178 S.W.2d 435.

'But, if the husband pays the consideration for the property and has the conveyance made to his wife, in the absence of evidence to the contrary, it will be presumed that he intended it as a settlement upon his wife. But this is a rebuttable presumption, and, if all the facts and circumstances show that no such settlement was intended, then the presumption of a settlement in favor of the wife is rebutted, and she will hold the property in trust for her husband, if he has paid for the same, just as if she were a third party.' Thierry v. Thierry, 298 Mo. 25, ...