McKee v. Downing

• Citation: 124 S.W. 7,224 Mo. 115
• Parties: MINERVA McKEE et al. v. J. W. DOWNING, Appellant
• Decision Date: 14 December 1909
• Court: United States State Supreme Court of Missouri

124 S.W. 7

224 Mo. 115

MINERVA McKEE et al. v. J. W. DOWNING, Appellant

Supreme Court of Missouri, Second Division

December 14, 1909

Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.

Reversed and remanded.

J. H Sayler and Funk & Crawford for appellant.

(1) The administrator of the estate of Susanna Downing, deceased, was a necessary party plaintiff to the action. McMillan v Wacker, 57 Mo.App. 220; Adey v. Adey, 58 Mo.App. 408; Butler v. Lawson, 72 Mo. 227. (2) Plaintiffs' cause of action, if any existed, was barred by the Statute of Limitations. Sec. 4281, R. S. 1899; Rosenberger v. Mallerson, 92 Mo.App. 27. (3) Plaintiffs cannot, by electing to take a resulting trust in lands, growing out of the investment of personal property in said lands, evade the running of the statute of limitations applying to suits brought for the recovery of specific personal property or to establish rights growing out of controversies regarding personal property. Keeton v. Keeton, 20 Mo. 530; Landis v. Saxton, 105 Mo. 486. (4) It is the settled rule, in this State, that a resulting trust will not be declared unless the evidence is clear, strong, unequivocal and so definite and positive as to leave no room for doubt in the mind of the chancellor. McMurray v. McMurray, 180 Mo. 526; Curd v. Brown, 148 Mo. 92. (5) Where the value of property used by defendant in the purchase of land, is not established, a resulting trust will not be declared. Garrett v. Garrett, 171 Mo. 155. (6) A resulting trust attaches in the ratio of ownership, and where the price paid or the present value of the land is not proven, a resulting trust cannot be declared. Shaw v. Shaw, 86 Mo. 594; Perry on Trusts (5 Ed.), par. 126; Baumgartener v. Guessfeld, 38 Mo. 37; In re Ferguson's Estate, 124 Mo. 574. (7) Where the relation of husband and wife exists, and during the coverture, the husband uses the wife's separate property, in the purchase of land, she can only have a resulting trust declared for such share of the land so purchased, as the principal sum of her money so used by the husband, bears to the present value of the said land. Bank v. Winn, 132 Mo. 81. The judgment will be simply reversed without remanding, where there is no evidence to sustain the verdict or judgment. McCartney v. Finnell, 106 Mo. 445.

OPINION

BURGESS, J.

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

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 Robert McKee, and Perry and Thomas Byrn. That afterwards, on the 14th day of January, 1881, the said Susanna intermarried with J. W. Downing, the defendant, and that at the time of her said marriage she was seized and possessed in her own right, as her separate property, of certain real estate and personal property, the latter consisting of horses, cattle, hogs, money, notes, etc., of the value of three thousand dollars; that from the date of her said marriage, the defendant, without authority, and without her express assent in writing, assumed the management and control of her said personal property, and wrongfully withheld possession of the same from her; that on November 8, 1883, the defendant purchased from one A. L. Rogers, for a consideration of $ 400, a tract of land situated in Nodaway county, described as the southwest quarter of the southeast quarter of section 31, township 67, range 33; that the said land so purchased by the defendant was paid for with the separate property, money and means of his wife, the said Susanna, without her assent in writing, and that the defendant took title to said land in his own name without her knowledge or consent; that said Susanna Downing died intestate in the county of Nodaway on September 14, 1903, leaving as her sole heirs and legal representatives these plaintiffs; that the defendant wrongfully withholds the possession of said real estate from the plaintiffs, as the heirs of their mother, the said Susanna. The prayer of the petition is that the court declare the said real estate to have been the separate property of the said Susanna Downing, and that it be decreed that the defendant held the same in trust for her, and since her death, to hold the same for and to the use of the plaintiffs, as her heirs, and that the defendant be divested of the title of said real estate, and the same be vested in the plaintiffs, and that the defendant be declared a trustee for and to the use of the plaintiffs as to the real estate so purchased and held by him.

Defendant filed a motion for judgment on the pleadings for the reason that plaintiffs failed to make the administrator of Susanna Downing, deceased, a party plaintiff to the action, which motion was overruled by the court.

Thereafter defendant filed his answer, denying the allegations of the petition, and alleging that "the cause of action, if any, stated in plaintiffs' petition, is barred by the Statute of Limitations, in that suit was not brought within one year after the death of the said Susanna Downing."

Defendant then objected to the introduction of any testimony in the cause, for the reasons stated in his answer and motion for judgment on the pleadings, which objection was overruled.

Jasper Dowis, a brother of Susanna Downing, testified for plaintiffs that at the time of said Susanna's marriage to Downing she possessed about thirty or thirty-five head of cattle, a span of mares and a span of colts. He did not know what Downing paid for the land purchased from Rogers, nor did he ever talk to Downing about it.

John King testified that Mrs. Downing possessed considerable live stock at the time she married Downing, the same consisting of horses, cattle and hogs; that she had a team of colts worth probably $ 250; that he did not remember the circumstances of the purchase of the Rogers land; that he had once heard Mrs. Downing say to her husband that "he traded her property for land. She didn't say what land -- her stock."

Cornelia McKee, a daughter of Mrs. Downing, testified that she was about eight years of age at the time of her mother's marriage to Downing. As to the purchase of the land in controversy she testified that she had heard her mother say to Downing "that he bought that place with her stock -- her property," and that Downing, in answer to such statement of her mother, "would never say nothing much about it."

Minerva McKee testified that she was a daughter of Mrs. Downing, and was about sixteen years of age at the time of the latter's marriage to the defendant. She also testified as follows: "At the time of her marriage to Mr. Downing she had quite a bunch of hogs, and she had 36 head of cattle and four head of horses, and I see her have $ 400 in the house. I remember the circumstance of his buying what is called the Rogers forty. I don't know the purchase price exactly. He paid for it in stock -- my mother's. There was a team of colts went in on that, and three cows. Never heard my mother say, in the presence of Mr. Downing, anything about how the land was paid for. Mr. Downing had, when he was married to my mother, forty acres of land, with a small house on it, and twenty acres of timber. Mr. Downing and my mother and their families lived on the farm of 360 acres which had been left by my father."

Fannie Wells, another married daughter and heir of Mrs. Downing, testified that she knew that two colts and some other stock owned by her mother went in on the trade between Downing and Rogers. She had heard her mother, time and again, say that the stock that was traded for the land was hers. In answer to a question as to whether Downing was present when she heard her mother say that, she answered, "I am not positive, but I have an idea he was present when it was talked."

David Rogers, son of A. L. Rogers, testified that he remembered something of the trade between his father and Downing. "My father got two head of horses, and my recollection is that he got four or five head of cattle. As I remember now, the best horse would have been worth $ 100 anyway -- I should have thought. The other was a young horse, a colt; I don't know really what it would have been worth." As to the value of the land, witness stated that his father always asked ten dollars an acre for it. He knew about the trade, saw the stock on the place, and heard his father say that he got it from Downing, but he did not know of his own knowledge whom the stock belonged to before it came into his father's possession. He never heard Mr. Downing say anything about it.

Eldridge Rowe testified for plaintiffs, as follows: "I was present at the home of Mr. Downing and his wife a couple of years after their marriage, and at the time when Mr. Rogers came there to trade this forty acres of land in controversy for some stock that Mr. Downing had there. I went out with them and looked at the horses; but they was talking about some cattle, and asked me to go along, and I told them 'No, it was getting late, and I must go.' So I went home and didn't see the cattle at all. Q. What horses was it that they were trading? A. It was a couple of young horses that was on the place there that belonged to the woman -- I mean his woman, Mrs. Downing. I knew the colts the time they were foaled. They were out of mares that belonged to Mrs. Downing, which she had during her widowhood, and I think the colts were on the place at the time of their marriage. At that time...