James v. Groff
| Citation | 57 S.W. 1081,157 Mo. 402 |
| Parties | JAMES et al. v. GROFF, Appellant |
| Decision Date | 26 June 1900 |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. Dorsey W. Shackleford Judge.
Affirmed in part and reversed in part.
James E. Hazell, John Cosgrove and Edmund Burke for appellant.
(1) The relations were those of natural affection and interest and no undue influence was shown, much less any actual fraud, and under the evidence the chancellor found against the weight of the testimony and his finding should be reversed with directions. Hamilton v. Armstrong, 120 Mo. 597. (2) Rachel Groff indorsed the notes over to her husband, and Lizzie says her sister wanted him to have them. This writing fairly transfers the notes and by her express assent, within the meaning of sec. 6869, R. S. 1889. (3) In this case the wife had indorsed the notes to her husband and that transfer was in writing, why does it not then become the husband's property, just as money if reduced to possession would, by the right of marriage? The proof to establish a trust in favor of the wife, must be strong, clear and unequivocal. Moddrell v. Riddle, 82 Mo. 31.
Moore & Williams for respondents.
(1) Suits for partition will lie in behalf of those having only equitable titles. Welch v. Anderson, 28 Mo. 293; Reed v. Robertson, 45 Mo. 580; Holloway v Holloway, 97 Mo. 628. (2) Conflicting claims and interests of parties, among themselves, including rents improvements, etc., may be settled in such suit. R. S. 1889, sec. 7134 et seq., and sec. 7148; Thompson v. Holden, 117 Mo. 119; Benoist v. Thomas, 121 Mo. 660; Gunn v. Thruston, 130 Mo. 344. (3) The suit at bar is wholly equitable, and the trial court had full power to set aside the deed to defendant, by which he held the legal title, in fraud, as to the equitable owners of the real estate. Hamilton v. Armstrong, 120 Mo. 597; Budde v. Rebenack, 137 Mo. 179. (4) The notes given the sisters by the purchaser, Keck, were not assigned to the defendant, Groff, that he should become the legal owner thereof, and the trial court so found. As to the wife, she being dead, defendant was not a competent witness. There was no proof that defendant became the owner of his wife's interest in the notes in accordance with the laws of this State. He married her in 1879. R. S. 1889, sec. 6869; Rogers v. Bank, 69 Mo. 560; Hart v. Leete, 104 Mo. 335; Leete v. Bank, 115 Mo. 184. (5) If he did, in fact, get the indorsement on the back of the notes (which was not proven), that did not give him the ownership thereof. There was no consideration therefor. McGuire v. Allen, 108 Mo. 403. (6) The investing of the notes to the extent of her interest in the $ 1,000 bid on the land, only made him a trustee for his wife's benefit as to the legal title taken to himself, whether with her knowledge and consent, or without it. Broughton v. Brand, 94 Mo. 169; Gilliland v. Gilliland, 96 Mo. 522; Alkire Grocer Co. v. Ballenger, 137 Mo. 369; Seay v. Hesse, 123 Mo. 450.
A suit in equity was instituted by plaintiffs to have the defendant adjudged a trustee, holding the legal title to three-fourths of the northeast quarter of section 8, township 43, range 15, except one-half acre used as a graveyard, in trust for the use and benefit of plaintiffs, and for a partition of said lands among the heirs of Rachel Groff, deceased.
The petition avers that on the 27th day of October, 1890, Elizabeth James and Rachel Groff, since deceased, and then the wife of defendant, Josiah H. Groff, were the owners in fee simple as tenants in common of the lands aforesaid; that on said last mentioned day Elizabeth James and Rachel Groff, the defendant, the husband of the latter joining with her, sold and conveyed said lands to one C. Keck for $ 3,200; that said Keck paid $ 500 cash and executed for the remainder of the purchase money four notes for $ 500 each, due respectively in 1, 2, 3 and 4 years, and one note for $ 700, due in five years, all said notes being secured by deed of trust on the land sold to W. J. Fulks, as trustee, with power to sell in case of the non-payment of any of said notes. All said notes were payable to Elizabeth James and Rachel Groff, as payee; that soon after the sale of said land said J. H. Groff, his wife, Rachel, and Elizabeth James, removed to West Plains, Missouri, where they resided as one family; that said Keck paid the first $ 500 note and the interest, but failed to make any other or further payments, whereby all said notes became due and payable; that at that time, and for a long time thereafter, said Elizabeth James and Rachel Groff had implicit faith and confidence in the honesty and integrity of the defendant, J. H. Groff, and intrusted to him all their business transactions; that both said sisters were advanced in years, were without education and had no experience in business affairs; that after the maturity of the second note in October, 1892, said Keck having failed to pay said note, said J. H. Groff represented to his wife, Rachel, and her sister, Elizabeth James, that it was necessary in order to foreclose said deed of trust that they assign and transfer said notes to him; that thereupon said Groff did write an assignment of said notes to himself (and did sign the names of his wife Rachel) and her sister Elizabeth, thereto; that there was no consideration whatever for the assignment of said notes, and in truth and fact no such assignment was necessary; that thereupon, at the request of said Groff, said trustee, W. J. Fulks, after duly advertising said lands, sold the same on January 7, 1893, and at said sale said land was bid in by said J. H. Groff at $ 1,000, that being the only bid made, and said Groff wrongfully caused the said trustee to execute a deed to him, thus vesting the legal title to said lands in himself; that said Groff did not pay his bid of $ 1,000, or any other sum except the cost of advertising said land, but caused the amount of said bid to be credited on the notes belonging to his wife Rachel, and her sister Elizabeth; that said Groff filed his deed for record in the recorder's office of said county, and the same is recorded in book 11, at page 193, and the same is here shown to the court, the original being in possession of said defendant; that afterwards said Groff concealed from his wife Rachel, and her sister Elizabeth, the fact that he had bid in said land in his own name, but falsely represented to them that the title to said land was vested in them just as it was prior to its sale by them to said Keck as aforesaid; that directly after the sale of said land, defendant Groff, his wife, and Elizabeth James returned to said farm, which they occupied together until the death of Rachel Groff on June 16, 1896; that said Rachel Groff died intestate, leaving as her heirs her husband or widower, J. H. Groff, and certain brothers and sisters, and the descendants of certain deceased brothers and sisters, to-wit:
1. William James, a brother.
2. (a) Sarah Hofmeier and (b) Polly Davis, the married daughters of Ann Graham, a deceased sister.
3. Lucy Raines, a sister.
4. The children of Edward B. James, a deceased brother, i. e.: (a) Stephen A. James; (b) John W. James; (c) Mary Houcks; (d) Furnace James; (e) Emma Warner, the daughter of Sarah James, deceased, who was a daughter of Edward B. James; (f) E. Frank James; (g) Grant James; (h) Docia James; (i) Susan Walker, who had died, leaving three children, to wit, (1) Edward Walker, (2) Lena Walker and (3) Della Walker.
5. Elizabeth James, a sister.
6. Mahlon J. James, a brother.
7. Jane Birdsong, a sister.
8. Rebecca Cheek, a sister.
Wherefore by reason of the premises, plaintiffs allege and charge that defendant, J. H. Groff, has been guilty of misconduct, fraud and deception, and they pray that he be adjudged to hold said real estate as trustee for the use and benefit of the plaintiffs and defendants as herein set out, and that he be divested of all interest in said land except as heir of his wife, Rachel Groff.
Plaintiffs pray for general relief.
To continue reading
Request your trial
-
Abington v. Harwell
...accomplished. See, in this connection: Lane v. Dowd, 172 Mo. 167; Martin v. Turnbaugh, 153 Mo. 172; Padgett v. Smith, 206 Mo. 303; James v. Groff, 157 Mo. 402. Under the common-law pleading circuity of action was not only not frowned upon, but was, in fact encouraged. For a long while after......