Kelly v. Johnson

• Decision Date: 31 March 1859
• Parties: KELLY, Plaintiff in Error, v. JOHNSON et al., Defendants in Error.
• Court: Missouri Supreme Court

28 Mo. 249

KELLY, Plaintiff in Error,

v.JOHNSON et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1859.

1. A resulting trust arises by operation of law where the purchase money of real estate is paid by one person and the legal title is transferred to another. The relation of trustee and cestui que trust in such cases must result from the facts as they exist at the time of or anterior to the purchase, and can not be created by subsequent occurrences.

2. It is not essential to the creation of a resulting trust that the money advanced should come directly from the cestui que trust; it is sufficient if it satisfactorily appear that the person supplying it intends it as a gift or loan to such cestui que trust.

Error to St. Louis Land Court.

This was an action commenced September 17, 1856, against Benjamin Johnson and Frances A. Graham. The petition set forth that in March, 1853, Johnson purchased and took to himself a conveyance of an undivided half of certain real estate; that he held it in trust for himself and one Robert Graham equally; that Graham had furnished one-half the purchase money under an understanding that they should be tenants in common of said interest in said land although the conveyance was made to Johnson alone; that Graham died about August 1, 1855, having first devised his interest in this land to Jane Kelly, plaintiff; that Johnson refused to convey the interest so devised to Jane Kelly; that Frances A. Graham, widow of Robert Graham, claims to be the owner of the interest devised to Jane Kelly. The petition prayed that Johnson might be compelled to convey the undivided half of said land to said Jane Kelly.

The answer of the defendants set up that before the commencement of this suit Johnson had conveyed the said undivided half of the land purchased by him to the defendant Frances A. Graham; that Johnson made the cash payment on account of said purchase, and gave his notes secured by deed of trust for the balance; that afterwards Robert Graham advanced money to take up these notes (amounting to one-half the purchase money) under the verbal understanding and agreement that he (Johnson) should hold the one-half interest aforesaid in trust for the sole and separate use and benefit of said Frances A. Graham; that Johnson accepted the trust, and continued to hold said interest subject to it until he conveyed the trust property to the cestui que trust, Mrs. Graham.

The consideration of the conveyance to Johnson was one thousand two hundred dollars. Robert Graham, by will, devised his interest in the land in controversy to the plaintiff, Mrs. Jane Kelly, his sister. Declarations of both Johnson and Graham, to the effect that they owned the land together and were jointly interested in it, were introduced in evidence. The defendants offered a deed dated April 3, 1856, from Johnson to Mrs. Graham conveying to her the undivided interest of one-fourth, recited therein to have been held in trust for Mrs. Graham. This deed was delivered April 5, 1856, but was not recorded until October, 1856. Plaintiff had no notice of it until its record. At the instance of the defendants the law was declared as follows: “If the deed from Benjamin Johnson to Frances A. Graham, read in evidence, is genuine, the plaintiffs are not entitled to the relief prayed in their petition.” The plaintiffs thereupon suffered a voluntary nonsuit, with leave, etc. The husband of Mrs. Kelly died pending the suit, and it was continued in her name.Gantt, for plaintiff in error.

I. The deed from Johnson to Mrs. Graham cuts no figure in the case at all. It was not known to the plaintiff before the commencement of this suit. On his own showing the interest retained by Johnson was abundantly sufficient to support a decree for a conveyance prayed for by the plaintiff. The case of Brueggeman v. Jurgensen, 24 Mo. 87, is not applicable. Even if Johnson had retained no interest in the land, the doctrine of that case would not be applicable. Both parties interested are before the court. Mrs. Graham is a volunteer, and not a bona fide purchaser for value. Graham had a resulting trust in the land which he disposed of to his sister. The answer seeks to set up a different trust, but there is no evidence to support it. Graham had no such understanding.

Krum & Harding, for defendants in error.

I. The relief prayed for can not be granted. (Brueggeman v. Jurgensen, 24 Mo. 87.) It makes no difference that Mrs. Graham is a party to this suit. No relief is prayed against her. She is not nor is Johnson charged with any fraudulent conduct. The plaintiffs, by their testimony, made out no case which would authorize the court to grant the relief prayed for. They are forced to rely on the admissions of the answer. These admissions must be...