Kash v. Coleman
| Decision Date | 17 October 1898 |
| Parties | Kash et al., Plaintiffs in Error, v. Coleman et al |
| Court | Missouri Supreme Court |
Error to Bates Circuit Court. -- Hon. Phineas H. Holcomb, Special Judge.
Affirmed.
Thomas J. Smith for plaintiffs in error.
(1) An express trust can not be proved by parol evidence, but only by a writing executed by the parties to be charged as trustees. R. S. 1889, sec. 5184; 1 Perry on Trusts, sec. 79; Woodford v. Stephens, 51 Mo.443. (2) There is no evidence that E. W. and N. B. Coleman or either of them ever executed any written memorandum or declaration whatever tending to prove or establish any trust in or to the land in controversy. (3) The evidence to establish a resulting trust must be clear, cogent, convincing and practically establishing the same beyond all doubt. Johnson v Quarrels, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Worley v. Dryden, 57 Mo. 233; Cornet v. Bertelsmann, 61 Mo. 127; Berry v. Hartzell, 91 Mo. 136; Davis v. Green, 102 Mo. 184. (4) The testimony of Thomas Strode, being now a party to the record, is incompetent to prove any contract which he had with E. W. and N. B. Coleman or to prove anything which he did under the contract, they being both dead. Angel v. Hester, 64 Mo. 142; Ring v. Jamison, 66 Mo. 424; Chapman v Dougherty, 87 Mo. 617; Emmel v. Hayes, 102 Mo. 199.
John S. Francisco for defendants in error.
(1) Plaintiffs in error claim that there is a variance between the pleading and proof. That the defendant below pleaded a trust and proved a claim by contract of purchase. If that be a fact the objection comes too late. Golden v. Clinton, 54 Mo.App. 100; Liddell v. Fisher, 48 Mo.App. 449; Howard Co. v. Baker, 119 Mo. 397. There was no objection to any of the testimony on that ground and no complaint raised in the motion for a new trial. A variance can only be shown by affidavit, otherwise the variance is waived. R. S. 1889, sec. 2096; Cayuga Co. Nat. Bank v. Dunklin, 29 Mo.App. 442. (2) On timely objection pleading can be amended to correspond with proof. R. S. 1889, sec. 2097. (3) The appellate court will not consider any matter of error or exception which has not been expressly passed upon by the trial court. R. S. 1889, sec. 2302; Mellor v. Railroad, 105 Mo. 455; Haniford v. Kansas City, 103 Mo. 172; Burdoin v. Trenton, 116 Mo. 358; Beck & Pauli Lith. Co. v. Obert, 54 Mo.App. 240. (4) The testimony of Thomas Strode was competent at the time given, whatever it may be now, and this court is confined to the record made below at the trial and can not reverse on what may have happened since. (5) The controlling question in the consideration of resulting trusts is the ownership of the purchase money. If the ownership be established beyond reasonable doubt, the resulting trust springs into being by implication of law and follows the ownership of the money. Shaw v. Shaw, 86 Mo. 594. And the same rule holds as to a portion of the purchase money. Baumgartner v. Guessfeld, 38 Mo. 36. (6) Defendant's title to the land can be sustained on a verbal sale to her with delivery of possession and full payment of the purchase money. Rosenberger v. Jones, 118 Mo. 559; Grumley v. Webb, 48 Mo. 586; Hays v. Railroad, 108 Mo. 544; Anderson v. Shockey, 82 Mo. 250; Dickerson v. Chrisman, 28 Mo. 134; Tatum v. Brooker, 51 Mo. 148; Adair v. Adair, 78 Mo. 630; Price v. Hart, 29 Mo. 171; Charpiot v. Sigerson, 25 Mo. 63.
The writ of error in this case seeks to reverse a judgment of the circuit court on an issue made by the answer of Mrs. Lucy Strode, one of the tenants in common of a large tract of land in Bates county which was being partitioned among the heirs of N. B. and E. W. Coleman. Mrs. Strode made no opposition to the partition save as to a tract of thirty-one acres off of the east end of the north half of the southeast quarter of section 32, township 41, range 29, of which she averred she was the sole equitable owner, but of which said N. B. and E. W. Coleman had the legal title at the time of their respective deaths; that Mrs. Strode was the owner of thirty-one eightieths of said eighty acre tract by reason of the fact that said N. B. and E. W. Coleman paid for it with her money and at all times recognized and admitted that they were her trustees. That in their lifetime they measured off and set apart to her, said thirty-one acres to indicate where her line ran.
The circuit court found the allegations of her answer to be true and decreed title to her in said tract, and proceeded to partition the remainder of the lands described. From so much of the decree as awarded this tract to Mrs. Strode, plaintiffs prosecute this writ of error. Mrs. Strode has since died and her heirs have been substituted in her stead, and have waived service and appear by their counsel.
I. No objections whatever were taken to testimony on the trial, but it is now urged that the evidence of Thomas Strode, a son of Mrs. Strode, should now be rejected because by his mother's death since the judgment in her favor, he has become a party to the record, and as he testified to conversations and admissions of E. W. and N. B. Coleman who were dead at the time of the trial, his incapacity should relate back and exclude his otherwise competent testimony. No rule of appellate procedure is more entrenched by reason and authority than that which restricts the court of errors to the record as made in the trial court. It is so manifestly just that it has received alike the commendation of the judicial and legislative departments. The competency of evidence or of the witness must be determined by his relation to the case at the time his evidence is offered. If by the rules of law the evidence is competent, then it must be admitted and considered and no subsequent incapacity or incompetency resulting from some subsequent change of relationship is permitted to...
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