McMurray v. McMurray

• Decision Date: 17 March 1904
• Citation: 79 S.W. 701,180 Mo. 526
• Parties: McMURRAY v. McMURRAY et al.
• Court: Missouri Supreme Court

79 S.W. 701

180 Mo. 526

McMURRAY v. McMURRAY et al.

Supreme Court of Missouri, Division No. 1.

March 17, 1904.

RESULTING TRUSTS — ESTABLISHMENT — EVIDENCE — ACTIONS — LIMITATIONS — ABSENCE FROM STATE — KNOWLEDGE — APPEAL — FINDINGS — CONCLUSIVENESS.

1. Certain property was conveyed to the grantor's son in trust for the grantor for life, and thereafter for the benefit of the grantor's wife and sons. After the grantor's death the son collected an insurance policy on his father's life, payable to the widow, which money, together with the proceeds of the sale of a leasehold occupied as a family homestead, and money received from a firm of which the father had been a member, he used to purchase certain land in controversy, the title to which he took in his own name, and which he many times declared he purchased for the widow. The widow, without knowledge that the land had been purchased by the son in his own name, took and held possession thereof from 1870 until her death, in 1899; and the son, though having paid a portion of the receipts from his father's interest in the firm to the widow, received in addition therefrom more than his share of his father's estate. The son had no means outside of the interest in such firm with which he could have purchased the property. Held, that such facts were sufficient to establish a resulting trust in the land in favor of the widow.

2. A finding and judgment of a chancellor in an equity case, while persuasive, is not conclusive on appeal.

3. Under the express provisions of Rev. St. 1899, § 3417, the statute of frauds has no application to an action to establish a resulting trust relating to lands.

4. Where, shortly after a widow's son purchased property with funds belonging to her husband's estate, and wrongfully took title in his own name, he left the state, and never lived therein thereafter, an action by the widow's heirs to declare a resulting trust in the land was not barred by limitations, under Rev. St. 1899, § 4282, authorizing a deduction of the time within which a person is absent from the state, in computing the period of limitation of an action against him.

5. Where a widow did not discover that the title to land purchased by her son with funds of her husband's estate had been wrongfully taken in the son's name until within 10 years next preceding a suit to declare a resulting trust in the land, such suit was not barred by limitations.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by Robert E. McMurray against Henrietta V. A. McMurray and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Joseph T. Tatum, for appellant. Byrns & Bean and C. J. Buchanan, for respondents.

MARSHALL, J.

This is a proceeding in equity to declare a resulting trust in favor of the plaintiff to 30 28/100 acres of land in Jefferson county, Mo., being the south part of the southwest fractional quarter of section 17, township 41 north, range 6. The petition charges that on July 28, 1870, J. Wilson McMurray purchased the land with the money of his mother, Eliza McMurray, for the purpose of securing to her a home, and that he wrongfully and without her knowledge took the title thereto in his own name; that she entered into the possession of the premises, and claimed them as her own against the world, exercising all acts of ownership thereover until her death, in 1899; that by her last will she devised the premises to her son, the plaintiff; that the defendants are the widow and children, respectively, of said J. Wilson McMurray, deceased. The answer is a general denial, with special pleas, first, that J. Wilson McMurray purchased the land with his own money; second, that he was in possession thereof from the time of the purchase until his death, in 1898, and that the defendants have been in possession thereof ever since; third, that he improved the property, kept it in repair, and paid the taxes thereon for 30 years; fourth, the 10, 24, and 30 year statutes of limitation; fifth, that the amounts paid for improvements and taxes exceed the value of the land; sixth, the statute of frauds. The reply alleges that Eliza McMurray did not know until within 10 years before this action was commenced, to wit, September 5, 1899, that the title had been so taken in the name of her son J. Wilson McMurray; that the money expended for improvements and taxes was her money; and that at the time of the purchase of the land J. Wilson McMurray was a resident of this state, but that within six months thereafter he removed therefrom, and has not since resided in this state. The trial court entered a decree for the defendants, and the plaintiff appealed. This being a bill in equity, the facts and circumstances will be stated in the course of the opinion.

For many years prior to July 6, 1870, John D. McMurray was engaged in the iron foundry and architectural business in St. Louis. He had several partners, but on the day stated the firm was McMurray, Smith & Judge, each having one-third interest. On the said day he died intestate, leaving a widow, Eliza McMurray, and two sons, J. Wilson McMurray and Robert E. McMurray, the plaintiff. Shortly before his death he conveyed certain property in St. Louis and his interest in the firm to his son J. Wilson McMurray, by a deed absolute on its face; but the son at the same time executed a declaration of trust, wherein he acknowledged that the property was held in trust for the father for his life, and for his wife and sons thereafter. John D. McMurray left a policy of insurance in favor of his wife for $3,000, which J. Wilson McMurray collected. He also sold the leasehold in St. Louis, which was occupied as a homestead, for $500. With this $3,500, together with $1,295.50 which he drew out of the firm, and perhaps other money of the estate, he purchased the property in question, declaring at the time and many times thereafter to his partner, Judge, and to others, and by letters to his mother, that it was purchased with the means aforesaid as a home for his mother. As soon as it was purchased, he put her into possession, and she remained in open, adverse, continuous, and uninterrupted possession from 1870 until her death, in 1899, and during all that time exercised the usual acts of ownership thereover. From 1870, when he became trustee as aforesaid, J. Wilson McMurray continued to manage the family interest in the firm until 1881, during which time he drew out of the firm, as such trustee, the sum of twelve or thirteen thousand dollars, of which he paid his mother from three hundred to five hundred dollars a year for her support, and paid his brother the plaintiff nothing, so far as the record shows. In 1881 his...