Jankowski v. Delfert

• Decision Date: 10 March 1947
• Docket Number: 39934
• Citation: 201 S.W.2d 331,356 Mo. 184
• Parties: Vincent Jankowski v. Sophie Delfert, Appellant
• Court: Missouri Supreme Court

201 S.W.2d 331

356 Mo. 184

Vincent Jankowski v. Sophie Delfert, Appellant

No. 39934

Supreme Court of Missouri

March 10, 1947

Rehearing Denied April 21, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed (with modification of judgment).

Harry Gershenson for appellant.

(1) Respondent's petition failed to state a cause of action on a resulting trust, but attempts to state an express trust which could not be proven by parol, since it affected real property. Hilliman v. Allen, 145 Mo. 639; Morford v. Stevens, 178 S.W. 441; Woodward v. Cohron, 137 S.W.2d 497; Parker v. Blakeley, 93 S.W.2d l.c. 986; Ebert v. Myers, 9 S.W.2d 1066; Sec. 3354, R.S. 1939. (2) If respondent's cause is considered as being predicated on a resulting trust, he has failed to sustain the extraordinary burden of proof imposed upon a claimant in such cases, which should not merely preponderate in his favor, but must be so unquestionable in its character, clear, cogent and convincing as to exclude every reasonable doubt from the chancellor's mind, and must be well nigh conclusive in character. Suhre v. Busch, 123 S.W.2d 19; Tichenor v. Bowman, 133 S.W.2d l.c. 325; Keener v. Williams, 271 S.W. l.c. 496. (3) The transfer was an executed gift and cannot possibly be construed, therefore, as a resulting trust, since all the elements of an executed gift appeared in this case. American Law Inst. Rest. of Law of Trusts, sec. 441, pp. 1348, 1356; 65 C.J., sec. 73, p. 307; Horn v. Owen, 171 S.W.2d 585; Fowler v. Fowler, 141 Mo.App. 610. (4) Respondent failed to prove a constructive trust, as erroneously decreed by the court, since equity does not enforce verbal agreements in the face of the Statute of Frauds, and person holding title will not be decreed a constructive trustee unless there is something more than violation of a parol agreement. Long v. Conrad, 42 S.W.2d 357.

Lawrence J. McKim and Wilton D. Chapman for respondent.

(1) That when a purchaser of property pays the price for it but the title thereto is taken in another, the law implies a trust in the property in favor of the purchaser. Carr v. Carroll, 178 S.W.2d 435; Shelton v. Harrison, 167 S.W. 634; Condit v. Maxwell, 142 Mo. 266, 44 S.W. 467; Adams v. Adams, 156 S.W.2d 610; Cloud v. Ivis, 28 Mo. 578; Plumb v. Cooper, 121 Mo. 668. (2) Payment of purchase price of property by one person and taking title by another raises presumption that the person taking the title took it in trust for that person who paid the consideration. The burden of rebutting such presumption rests on the one in whose name the title was taken. Robertson v. Woods, 263 S.W. 135. (3) Implied trusts are not within the Statute of Frauds and may be proved by parol testimony. Sec. 3495, R.S. 1939; Thierry v. Thierry, 249 S.W. 952; Robertson v. Woods, 263 S.W. 135; Cason v. Cason, 28 Mo. 47. (4) An implied trust is not converted into an express trust by verbal contemporaneous agreement of the parties because it is not manifested in writing as required by the Statute of Frauds for an express trust, and failure to put declaration of trust in writing does not prevent trust from resulting by operation of law from the acts of the parties. Carr v. Carroll, 178 S.W.2d 435; Condit v. Maxwell, 142 Mo. 266, 44 S.W. 467; Mays v. Jackson, 145 S.W.2d 392. (5) Where a gift is set up by a donee as a defense to a claim for property the donee is cast with the burden of proof to demonstrate every essential fact necessary to the validity of the gift. A donor is not required as a part of his case to show there was no gift. Tygard v. Falor, 63 S.W. 672, 163 Mo. 234; Spencer v. Barlow, 5 S.W.2d 28; Wilkinson v. Wann, 16 S.W.2d 72. (6) The Supreme Court will defer to the findings of the chancellor on conflicting parol evidence. Stein v. Mercantile Home Bank, 148 S.W.2d 570; Carr v. Carroll, 178 S.W.2d 435; Mays v. Jackson, 145 S.W.2d 392.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to declare that the title of defendant (appellant) to lot 15, and part of lot 14, O'Fallon Park Subdivision, St. Louis, is held by her as trustee in a resulting trust for the benefit of plaintiff (respondent). In a second count plaintiff asked for an accounting as to $ 4,000 defendant borrowed and secured by deed of trust on the property. Defendant claimed that she and plaintiff were to be married and that the money with which she bought the property was a gift to her by plaintiff.

The trial court, in an interlocutory decree, found that defendant held title as trustee of a constructive trust (used sometimes interchangeably for resulting trust, 65 C.J., p. 226) for the benefit of plaintiff, and directed that defendant make an accounting as to the $ 4,000 loan she placed on the property, as to rents she collected, and expenses she incurred. Defendant made the accounting which showed that the deed of trust to secure the $ 4,000 loan was released. And the accounting showed $ 1900 rents collected for 19 months, and expenses incurred, $ 1,015.67. The final decree divested title of defendant and vested the title in plaintiff; gave judgment in favor of plaintiff for $ 984.33 (should be $ 884.33) excess of rents collected over expenses incurred. Defendant appealed.

Defendant says that plaintiff's petition does not state facts sufficient for relief on the ground of a resulting trust. Both plaintiff and defendant are Poles and speak the Polish language, but plaintiff can neither read nor write any language. He speaks some English, but his ability to understand and answer questions in English was such that a Polish interpreter was called at intervals.

The property in question is referred to in the record as the Fair Avenue property. In 1942, plaintiff owned a house at 1950 Dodier Street, St. Louis, where he resided with his wife and 5 of his 7 children. His wife died July 15, 1943, and several months thereafter Antonshek Terry, an acquaintance of plaintiff and defendant's neighbor, took him to the home of defendant, a widow, who resided in her own home. Plaintiff said both Antonshek and defendant told him that defendant had told Antonshek to bring plaintiff to defendant's home. After the introduction plaintiff made frequent visits to defendant's home and quite a friendly relation, at least on plaintiff's part, developed. Finally defendant asked plaintiff to sell his Dodier Street home and buy something else; that she would find a place for him to buy. In May, 1944, he sold his home for $ 9200, but owed $ 500 thereon. After paying the $ 500 and other bills, he deposited (May 24, 1944) the remainder of the proceeds of the sale ($ 7,956.83) in the Northwestern National Bank, St. Louis. Defendant found the Fair Avenue property, the property involved here. Plaintiff met a real estate agent at defendant's home; thereafter looked at the Fair Avenue property, two or three times, once with defendant, and maybe twice, and on June 2, 1944, according to the bank record, plaintiff drew $ 150 from his account which he says was paid on the purchase price. Plaintiff said he gave the $ 150 to the real estate agent, and that he told the agent that he, plaintiff, would buy the property. July 11, 1944, plaintiff drew $ 6,850 from his deposit in Northwestern National Bank. He said that defendant sent her son in law (her son) with him when he drew the $ 6,850. After drawing the $ 6,850, plaintiff and the son returned to defendant's home and plaintiff delivered the money to defendant, and he says that defendant thereupon said, "I pay for -- for your property." Soon after the $ 6,850 was delivered to defendant, she, her son, and plaintiff went to the real estate office that was handling the matter and the purchase of the Fair Avenue property was completed. The purchase price was $ 9,500, and this amount was handled by paying the $ 6,850 cash; the $ 150 deposited on the purchase price was applied, and a $ 2,500 deed of trust was given on the property, but the deed was made to defendant. Plaintiff testified that at the real estate office, when the deal was closed, he ascertained that the deed was to defendant (but this was after the deed was executed), and that he objected; that defendant told him that he should do nothing about the matter there, but to remain quiet and that she would transfer the title to him the next week. He says the real estate agent said that it would cost only $ 1.50 to return the property to him. The real estate agent testified that he "made" the deed, but does not say when. He said that plaintiff, defendant and her son, were at his office when the deal was closed, but does not mention the grantor or grantors, as the case may be. The deed is not in the record. The inference is that the grantor or grantors were not present, and if such is the case, then the deed was "made" before the deal was closed at the real estate office. The $ 4,000 deed of trust that defendant later placed on the property was, it seems, arranged for at this real estate office, and the real estate agent who "made the deed to defendant at first said that he thought plaintiff came to the office with defendant in connection with the deed of trust; then he said it "was another man, a heavy set man."

On cross-examination plaintiff said he never saw the deed at the real estate office, and he perhaps did not. The real estate agent who "made" the deed said plaintiff did not see it, and he said that he read the deed to defendant, but not in the presence of plaintiff. Plaintiff said that he first saw the deed two days later at defendant's home that she told him his name was in it; that he could not read English or Polish; that she told him that for $ 1.50 she could transfer the deed into his name. Plaintiff said that after the deal was closed he saw defendant...