McMurray v. McMurray

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

79 S.W. 701

180 Mo. 526

McMURRAY, Appellant, v. McMURRAY et al

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from Jefferson Circuit Court. -- Hon. Frank R. Dearing Judge.

Reversed and Remanded (with directions).

Joseph T. Tatum for appellant.

(1) Suits to establish resulting trusts have been of frequent occurrence in Missouri and elsewhere. While each case rested upon the view taken of its own particular facts, the principles of decision in the several jurisdictions have been remarkably in unison and well settled. They may be epitomized, as concerns the case at bar, as follows: (a) A resulting trust is said to arise when land is purchased with the money of one, but the title taken in the name of another where a gift or settlement is not intended. (b) The evidence is required to be clear, positive, unequivocal and convincing, leaving no room for a reasonable doubt as to the facts relied upon. (c) Parol evidence is sufficient to establish the facts, as such trusts are not within the statute of frauds, and in Missouri are expresslly excepted. R. S. 1899, sec. 3417; Truesdell v. Callow, 6 Mo 605. (d) Admissions and declarations of the one taking the legal title are admissible in evidence, even though he be dead. (e) The res gestae, the acts of the parties, the attending facts, the surrounding circumstances, the environments, are all to be considered by the chancellor in weighing the evidence. (f) It is not necessary that the proof should be so strong as to create a certainty, but it is only required that the evidence should so preponderate as to create a reasonable belief that an equitable right exists. The probabilities are to be regarded and given weight. "Probability is the chief corner stone of evidence." The Missouri decisions abundantly establish the above propositions -- not one case to the contrary. Bird v. Ward, 1 Mo. 308; Truesdell v. Callow, 6 Mo. 605; Richardson v. Robinson, 9 Mo. 810; Depos v. Mayo, 11 Mo. 314; Thompson v. Renoe, 12 Mo. 157; Paul v. Chouteau, 14 Mo. 580; Groves' Heirs v. Fulsome, 16 Mo. 543; Valle v. Bryan, 19 Mo. 423; Rankin v. Harper, 23 Mo. 579; Kelly v. Johnson, 28 Mo. 249; Cloud v. Ivie, 28 Mo. 578; Evans v. Gibson, 29 Mo. 223; Baumgartner v. Guessfeld, 38 Mo. 36; Jackson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Woodford v. Stephens, 51 Mo. 443; Ringo v. Richardson, 53 Mo. 385; Morey v. Staley, 54 Mo. 419; Higgins v. Higgins, 55 Mo. 346; Kennedy v. Kennedy, 57 Mo. 73; Darrier v. Darrier, 58 Mo. 222; Sharp v. Berry, 60 Mo. 575; Seibold v. Christman, 75 Mo. 308; Buren v. Buren, 79 Mo. 538; Modrell v. Riddle, 82 Mo. 31; Shaw v. Shaw, 86 Mo. 594; Viers v. Viers, 75 S.W. 395; Brinkman v. Lunken, 174 Mo. 709; Johnston v. Johnston, 173 Mo. 91; Crawford v. Jones, 163 Mo. 577; Curtis v. Moore, 162 Mo. 442; Goodman v. Crowley, 161 Mo. 657; Rice v. Shipley, 159 Mo. 399; Miller v. Shipsky, 158 Mo. 644; James v. Groff, 157 Mo. 402; Mulock v. Mulock, 156 Mo. 431; Pitts v. Weakly, 155 Mo. 109; Joyce v. Gowney, 154 Mo. 253; Small v. Hatch, 151 Mo. 300. (2) Plaintiff is not barred by limitation. R. S. 1899, sec. 4282; Darrier v. Darrier, 58 Mo. 234; Boynton v. Miller, 144 Mo. 681; Buren v. Buren, 79 Mo. 538. (3) Mrs. Eliza McMurray has not been guilty of laches. (a) There is no intervention of third party rights. (b) There is not a scintilla of evidence that she had actual knowledge of the real condition of the title. Morey v. Staley, 54 Mo. 419; Butler v. Lawson, 72 Mo. 249; Johnston v. Johnston, supra; Condit v. Maxwell, 142 Mo. 266; Buren v. Buren, supra; Boynton v. Miller, supra; Perry on Trusts, sec. 141; Lindell Co. v. Lindell, 142 Mo. 61; Life Assn. v. Liddal, 3 De G. F. & J. 74.

Byrns & Bean with C. J. Buchanan for respondents.

(1) The rule in this State, as to resulting trusts, is that the evidence of such trust must be clear, strong and unequivocal, and so definite and positive as to leave no room for doubt in the mind of the chancellor. Burdett v. May, 100 Mo. 13; Curd v. Brown, 148 Mo. 92. The competent evidence in this case falls far short of that standard. When the incompetent testimony has been sifted out of this record there is little left. Weiss v. Heitkamp, 127 Mo. 30; Kelley v. Johnson, 28 Mo. 249; Miller v. Freeman, 40 Ark. 62; 1 Perry on Trusts, par. 126, p. 163. (2) Equity views with disfavor suits brought after the death of one of those whose estate is sought to be charged, where the fraud alleged was known before such death, and the suit might have been brought during the lifetime of the party; and where, without reason, the suit is delayed until after his death such laches must be held fatal. Lenox v. Harrison, 88 Mo. 497; Campean v. Vandyke, 15 Mich. 371; Russel v. Miller, 26 Mich. 1. (3) Plaintiff contends that the statute of limitations does not run because J. Wilson McMurray removed from the State of Missouri. And at the time of the last payment J. Wilson McMurray was not a resident of the State; and section 4282 of the statutes would not apply to prevent the running of the statute. Orr v. Willmarth, 95 Mo. 212. Appellant claims that because his ancestor was in possession the statute does not run. The testimony shows that Maj. McMurray bought the land, took the title and placed his mother there and kept her and maintained her. Burdett v. May, 100 Mo. 20.

OPINION

MARSHALL, J.

This is a proceeding in equity to declare a resulting trust in favor of the plaintiff, to thirty and twenty-eight hundredths acres of land, in Jefferson county, Missouri, 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 thirty years; fourth, the ten, twenty-four and thirty 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 ten 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 and 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 three thousand dollars, which J. Wilson McMurray collected. He also sold the leasehold in St. Louis, which was occupied as a homestead, for five hundred dollars. With this thirty-five hundred dollars, together with twelve hundred and ninety-five dollars and fifty cents 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 mother and brother became dissatisfied with his management of the trust property, and began a suit against him for an accounting. The result was a compromise whereby the partnership was converted into a corporation and each received stock in proportion to their interest. In a letter to his mother in 1882, ...