Jones v. Smith

• Decision Date: 05 April 1926
• Citation: 282 S.W. 83,221 Mo.App. 510
• Parties: ANNA L. JONES, APPELLANT, v. W. E. SMITH, ADMR., ET AL., RESPONDENTS. [*]
• Court: Kansas Court of Appeals

282 S.W. 83

221 Mo.App. 510

ANNA L. JONES, APPELLANT, v. W. E. SMITH, ADMR., ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri, Kansas City

April 5, 1926

Appeal from the Circuit Court of Boone County.--Hon. D. H. Harris Judge.

AFFIRMED.

Judgment affirmed.

Don C Carter for appellant.

N. T Gentry, McBaine & Clark and Paul M. Peterson for respondent.

ARNOLD, J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is a suit in equity whereby plaintiff seeks a money judgment against the estate of her deceased husband and to have the same impressed as an equitable lien against sixty-one acres of land in Boone county, Mo., of which her husband died seized. The basis of the suit is that certain funds in the amount of $ 1652.60, inherited by plaintiff from the estate of her father, were used by her husband in his lifetime, without plaintiff's written assent, in paying for certain real estate now sought to be impressed with the equitable lien.

The facts shown by the record, briefly stated, are that plaintiff's husband, L. F. Jones, died intestate in Boone county, Mo., July 15, 1922, leaving a widow, Anna L. Jones, the plaintiff herein, and as his only heirs-at-law, a son Harry L. Jones and a daughter Artelia Jones, both adults and made parties defendant herein. L. F. Jones died seized of sixty-one acres of land in Boone county, Mo., near the town of Sturgeon which for some years prior to his death was his homestead and the residence of himself and wife, the plaintiff herein. In due time after his death, plaintiff was appointed administratrix of her husband's estate and qualified and took charge of same for the purposes of administration.

On the---day of May, 1924, plaintiff filed a petition and application with the probate court of Boone county, Mo., for the appointment of an administrator ad litem to represent the estate in a suit she desired to file in the circuit court to establish a lien upon the sixty-one acres of land of which her husband died seized. Accordingly the probate court appointed W. E. Smith such administrator ad litem, and he is made defendant herein.

The facts of record show that plaintiff's father, Thomas H. Stone, died intestate in Boone county, December 28, 1911; that his estate consisted of personal and real property; that from the administration of his estate plaintiff received her share of the personal property in the form of a check for $ 398.19 which she endorsed and turned over to her husband who deposited it to his credit in the Bank of Sturgeon, Sturgeon, Mo. The real estate of plaintiff's father was partitioned in the circuit court of Boone county and sold, and on distribution thereof plaintiff received $ 1254.41 in the form of a check she also endorsed and turned over to her husband who deposited it to his own credit in the Bank of Sturgeon. The total amount plaintiff received from the estate of her father was $ 1652.60.

The purpose of the present suit is to establish as a fact that the money received from the estate of plaintiff's father went into the purchase of the sixty-one acres of land of which her husband died seized; that she be given judgment for this amount and that said judgment be declared an equitable lien against the estate.

The petition alleges formal facts as above stated; describes the land in question and states that L. F. Jones purchased the tract described in the petition, consisting of 61.12 acres; that at the time of the death of said L. F. Jones there was, and now is, a deed of trust on said real estate in the sum of $ 5520, executed by L. F. Jones and wife to J. H. Lightner, trustee, for the use and benefit of T. J. Jones, securing a promissory note in the amount last named.

The petition further states that on May 6, 1909, L. F. Jones borrowed of the Bank of Sturgeon, the sum of $ 2000 for which he executed his promissory note and as security therefor executed and delivered a deed of trust on the 61.12 acres of land in question; that on December 28, 1911, Thos. H. Stone, plaintiff's father, died and his estate was administered upon and the proceeds thereof distributed as above indicated; the plaintiff received her distributive share thereof which plaintiff's husband took charge of without her consent in writing, and which he used to pay off the $ 2000 note and deed of trust given the Bank of Sturgeon and in improving the said 61.12 acres of land; that said real estate, at the time, was in the name of said L. F. Jones; that plaintiff never has received any portion of said money from her husband or from his estate, and that in equity she is entitled to a lien, or resulting trust, upon and against the said 61.12 acres of land. The prayer seeks a money judgment and decree to the effect that plaintiff's husband held said money as trustee for the use and benefit of plaintiff, and that said land be impressed with an equitable lien in favor of plaintiff, subject to an existing deed of trust for $ 5520.

The answer of the administrator ad litem is, first, a general denial, and for further answer, states that if the lien sought in the petition is established, the estate of L. F. Jones will be rendered insolvent and there will not remain sufficient funds to pay the unsecured debts of the estate; that there is not sufficient personal property or other real estate to pay the present creditors of the estate, and that it will be necessary to sell the real estate mentioned in the petition to pay the unsecured debts of the estate.

The answer also pleads the Statute of Limitations (sec. 1317, R. S. 1919), and declares plaintiff should not be allowed to recover for the reason that her cause of action accrued more than five years before the filing of the suit. The answer further pleads the Statute of Limitations, as provided in sections 1308 and 1316, Revised Statutes 1919, in that plaintiff's cause of action accrued more than ten years prior to the filing of this suit; that the sums of money mentioned in the petition were advanced by plaintiff to her husband more than ten years before filing the petition herein, and that during all that time plaintiff has permitted her husband to use and control said money and to represent to all people that he was the owner and possessed of said money; and because of such facts he was able to secure credit from various and sundry persons on the strength of said representations; that various and sundry creditors advanced to said L. F. Jones credit on said representations and are now creditors of his estate; and that by reason of the fact that plaintiff permitted her husband to hold himself out as the owner of said real estate through all these years, she should not be permitted to recover.

The other defendants, Harry L. Jones and Artelia Jones, entered appearance and filed separate answers admitting the allegations in plaintiff's petition and consenting to a judgment and decree as prayed therein. The reply was a general denial...