McKee v. Downing

• Decision Date: 14 December 1909
• Citation: 224 Mo. 115,124 S.W. 7
• Parties: McKEE et al. v. DOWNING.
• Court: Missouri Supreme Court

124 S.W. 7

224 Mo. 115

McKEE et al. v. DOWNING.

Supreme Court of Missouri, Division No. 2.

December 14, 1909.

1. TRUSTS (§ 366) — ESTABLISHMENT — NECESSARY PARTIES — ADMINISTRATOR.

In a suit by heirs to establish a resulting trust in land on the ground that defendant, decedent's husband, used her separate property to buy the land and took title to himself, where it was not charged in the petition that the land was needed to pay decedent's debts, and it did not appear that she had any debts at her death or that any administrator had been appointed, or, if there had, whether or not he had made final settlement, such administrator was not a necessary party, since the land on decedent's death descended to her heirs, subject to the paramount right of creditors of the estate to have it sold by the administrator, upon an order of court, to pay decedent's debts.

2. TRUSTS (§ 359) — RESULTING TRUSTS — REMEDIES OF BENEFICIARIES.

Those who are the equitable beneficial owners of a fund which has been invested by another in land, who has taken the legal title to himself, may sue for the land itself or for the amount of money so converted, with interest thereon from the time of the conversion.

3. PARTIES (§ 75) — DEFECTS — MODE OF RAISING OBJECTION.

A defect of parties plaintiff cannot be raised by a motion for judgment on the pleadings, but if the defect is apparent on the face of the petition, it must be raised by demurrer, and, if the petition is sufficient on its face, the objection must be taken by the answer.

4. PLEADING (§ 345) — MOTIONS — JUDGMENT ON PLEADINGS.

Defendant is not entitled to judgment upon the mere filing of the petition, unless the petition states such facts as clearly show that plaintiff is not entitled to judgment.

5. LIMITATION OF ACTIONS (§ 73) — ACTION TO RECOVER LAND HELD IN TRUST — APPLICATION OF STATUTES.

Rev. St. 1899, § 4271 (Ann. St. 1906, p. 2345), provides that civil actions other than those for the recovery of real property can only be commenced within the periods prescribed in the article (article 2, of the chapter "Limitation of Actions," relating to personal actions). Section 4279 provides that, if any person entitled to bring an action specified in the article be under any of certain disabilities, he may sue after its removal. Section 4281 of the same article provides that if any person so entitled to sue die before the expiration of the time therein limited for the commencement of suit, if such cause of action shall survive to his representatives, his executor or administrator may, after the expiration of such time and within one year after such death, commence such action, but not thereafter. Held, that section 4281 applies only to personal actions and not to a suit by heirs to recover land alleged to be held by defendant as trustee for decedent, his wife, and the limitation applies only to decedent's executor or administrator.

6. LIMITATION OF ACTIONS (§ 73) — ACTION TO RECOVER LAND HELD IN TRUST — MARRIED WOMAN DYING IN COVERTURE.

Such an action to recover land would be governed by Rev. St. 1899, § 4265 (Ann. St. 1906, p. 2338), providing that, if a person entitled to bring any action specified in the article (Limitation of Real Actions), be at the time of the accrual of the right of action a married woman, the time of such disability shall not be any portion of the time limited for beginning the action, but her action will not be barred for 24 years from the time it accrues; and section 4267 providing that, if such married woman die intestate while under the same coverture and within 24 years after the cause of action accrued, her heirs may commence such action within 3 years after her death.

7. LIMITATION OF ACTIONS (§ 73) — ACTION TO RECOVER LAND HELD IN TRUST FOR MARRIED WOMAN.

Under such statutes, where a woman was married January 14, 1881, and her husband, alleged to have purchased land in his own name with her money, purchased it November 8, 1883, and the wife died September 14, 1903, an action by her heirs to recover the land brought before July 9, 1906, is not barred by limitation.

8. LIMITATION OF ACTIONS (§ 193) — PLEADING — SUFFICIENCY.

An allegation in an answer that the action was barred by limitation because not brought within one year after the death of plaintiffs' decedent does not prove itself, and is not sufficient to show that the suit was not brought within that time.

9. APPEAL AND ERROR (§ 673) — RECORD — QUESTIONS PRESENTED FOR REVIEW.

Even if the suit be considered a personal action seeking for a monetary judgment as for conversion, the judgment cannot be reversed because the suit was not brought within a year after the death of plaintiffs' intestate, where there is nothing in the record by which it could be determined when the action was brought.

10. APPEAL AND ERROR (§ 250) — REVIEW — EQUITY CASES — ERRONEOUS RULINGS ON EVIDENCE.

While in a law case the Supreme Court would not consider an assignment of error to the admission of evidence, where no exception was saved to the court's action in declining to rule thereon, in an equity case, the exclusion of competent testimony or the admission of incompetent testimony by the chancellor is of no great concern on appeal, if the evidence is so preserved that the reviewing court can have it all before it; so that it can be considered for what it is worth and can be admitted or excluded, and the competency of plaintiffs as witnesses may be considered on such an appeal, though no exception was saved to the failure of the chancellor to rule upon their competency.

11. HUSBAND AND WIFE (§ 115) — WIFE'S SEPARATE ESTATE — CONSENT TO HUSBAND'S USE.

All personal property belonging to a woman at the time of her marriage belongs to her as her separate estate unless reduced to the husband's possession with the wife's express, written assent, under the express provisions of Rev. St. 1899, § 4340 (Ann. St. 1906, p. 2382).

12. HUSBAND AND WIFE (§ 135) — WIFE'S SEPARATE ESTATE — USE BY HUSBAND WITHOUT WIFE'S WRITTEN ASSENT.

Act of a husband in using his wife's individual, personal property to buy land without her written assent, and taking title in his own name, is a fraud.

13. WITNESSES (§ 145) — SUCCESSORS IN INTEREST OF DECEDENT — CONSTRUCTION OF STATUTE.

Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), provides that, in actions where one of the original parties to the contract or cause of action in issue and on trial, is dead, the other party to such contract or cause of action shall not be permitted to testify either in his own favor or in favor of any party to the action claiming under him; and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or, if living, would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor. Plaintiffs, heirs of decedent, sued decedent's husband to recover land purchased by him with decedent's separate property without her written assent, title to which was taken in his own name. Held, that plaintiffs were not incompetent as witnesses because of the incompetency of decedent to testify as "one of the original parties to the contract * * * in issue and on trial," since no contract was in issue in the suit, and she was not a party to the contract for the purchase of the land by her husband.

14. WITNESSES (§ 145) — SUCCESSORS IN INTEREST OF DECEDENT — CONSTRUCTION OF STATUTE.

The statute providing that "the other party to such * * * cause of action shall not be admitted to testify, either in his own favor or in favor of any party to the action claiming under him," meaning under the living party, and not the deceased party, plaintiffs claiming under decedent would not be disqualified thereby.

15. WITNESSES (§ 145) — SUCCESSORS IN INTEREST OF DECEDENT — CONSTRUCTION OF STATUTE.

Plaintiffs were not disqualified by the clause, "and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living, would be subject to the foregoing disqualification, shall be admitted to testify in his own favor," since their disqualification is made "subject to the foregoing disqualification" of decedent, and the foregoing part of the section would not disqualify her but only the living party.

16. EQUITY (§ 73) — ACTION — LACHES.

Courts do not look favorably upon claims of many years' standing where all the facts might have been established by a timely suit and are slow to disturb land titles which have existed for many years, and where neither of the parties who are the most concerned can testify, one being dead and the other's mouth being closed by that fact; and under such circumstances, in order to justify a decree divesting title upon oral testimony detailing, in many cases, loose conversations which occurred years ago, the chancellor's mind must be satisfied by clear and positive proof.

17. TRUSTS (§ 89) — RESULTING TRUSTS — ACTION TO DECLARE — SUFFICIENCY OF EVIDENCE.

Evidence held not sufficient to establish a resulting trust in land alleged to have been purchased by a husband with his wife's separate property without her express, written assent, who took title in his own name.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Action by Minerva McKee and others against J. W. Downing. Decree for plaintiffs, and defendant appeals. Reversed and remanded.

J. H. Sayler and Funk & Crawford, for appellant.

BURGESS, J.

This is a controversy over the ownership of a 40-acre tract of land in Nodaway county, Mo.

The petition states, in substance: That on the ____ day of June, 1876, Thomas Byrn died intestate, leaving a large amount of real and personal property, and leaving as his only heirs and legal representatives his widow, Susanna, and his children, the plaintiffs, as follows: Minerva Byrn, since intermarried with Joseph McKee; Fannie Byrn, since intermarried with J. T. Wells; Cornelia Byrn, since intermarried with ...