Moss v. Ardrey

• Court: Missouri Supreme Court
• Writing for the Court: Graves
• Citation: Moss v. Ardrey, 260 Mo. 595, 169 S.W. 6 (Mo. 1914)
• Decision Date: 02 July 1914
• Docket Number: No. 16446.,16446.
• Parties: MOSS et al. v. ARDREY et al.

169 S.W. 6

260 Mo. 595

MOSS et al. v. ARDREY et al.

No. 16446.

Supreme Court of Missouri.

July 2, 1914.

Rehearing Denied July 14, 1914.

1. HUSBAND AND WIFE (§ 14)—CONVEYANCE TO—ESTATE CREATED.

A deed to a husband and wife presumptively creates an estate by the entirety, so that on the death of one the whole estate vests in the survivor.

2. TRUSTS (§ 81)—RESULTING TRUST—HUSBAND AND WIFE.

While a court of equity, where a husband takes his wife's money, and, along with some of his own, pays for land taking title in the name of the two, will, at the instance of the wife or her heirs, decree a resulting trust pursuant to which she is the absolute owner of such proportionate part of the land as was paid for with her money, the aid of equity cannot be invoked by the husband's heirs to secure such decree, and thereby deprive the wife or her heirs of their right to the whole estate at his death.

3. TRUSTS (§ 88)—RESULTING TRUST—EVIDENCE TO ESTABLISH.

Extrinsic proof is admissible to show that, though the deed was to husband and wife, a resulting trust was created in the wife's favor by the purchase of the property by the husband in part with her money.

In Banc. Appeal from Circuit Court, Pike County; William T. Ragland, Judge.

Suit by Elzena Moss and others against Margaret V. Ardrey and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Schofield & Plowman, of Hannibal, for appellants. M. L. Farres, of Hannibal, for respondents.

GRAVES, J.

The petition in this case is in two counts. By the first count the plaintiff Elzena Moss seeks to set aside for fraud and undue influence a certain deed executed by her and others to her father, conveying the land in dispute. This count, in addition, asks that the court ascertain and determine the title of the several parties in and to the lands. The second count is an action for the partition of the land. The case is fully stated by the trial court in a finding of facts incorporated with its judgment. Many of these findings of facts stand admitted in the briefs, but where there is dispute such dispute can be considered in the course of the opinion. The findings nisi will serve well for a statement of the case. Such findings are as follows:

"The court finds under count No. 1: That Noah Turley died intestate about the year 1859, leaving surviving him his widow, Christiana Turley, and their only child, Charity C. Turley, and seised in fee of the following described lands, to wit [described lands in controversy]. That at the death of said Noah Turley all of said lands descended to said Charity C. Turley subject to the dower right therein of her mother, the said widow of said Noah Turley, deceased. That thereafter there was duly assigned and set out to said widow, Christiana Turley, as and for her dower in said lands, 63 acres thereof. That after the death of Noah Turley his said widow married one Benjamine Milam. That in the year 1870 or 1871 said Charity C. Turley married one William G. Ardrey. That thereafter, in the year 1873, the said Christiana Milam and Benjamine R. Milam, her husband, by their general warranty deed of date March 20, 1873, and duly acknowledged by the grantors in said deed and duly filed for record June 2, 1891, in the office of the recorder of deeds in and for Pike county, Mo., granted and conveyed to the said Charity C. Ardrey all of said 63-acre tract. That by reason of such conveyance the said dower interest in said 63-acre tract and the said remainder interest therein of the said Charity C. Ardrey merged, and she became and was the owner in fee of both the said 63-acre tract and the 73-acre tract, constituting together said 136-acre tract. That there were born to said William G. Ardrey and Charity C. Ardrey, his wife, four children, James T. Ardrey, Evelena Ardrey, Elzena Ardrey, and William S. Ardrey. That Sophia Ardrey, a defendant herein, is the wife of said James T. Ardrey. That Nora Ardrey, a defendant here, is the wife of William S. Ardrey. That said Evelena Ardrey married George Burch, a defendant herein. That said Elzena Ardrey married one Charles Liter; from whom, on the ____ day of May, 1907, she was lawfully divorced. That thereafter, and prior to the death of her father, the said Elzena Liter married, and is now the wife of, Joseph Moss, her coplaintiff herein. That in the year 1884 said Charity C. Ardrey died intestate, leaving surviving her her widower, the said William G. Ardrey, and the said four children born to the said William G. Ardrey and his wife, Charity C., as aforesaid. That after the death of their mother the said children, by means not clearly appearing in the evidence, sought to dispossess their father of said lands, which by reason of the death of their mother had descended to said four children as tenants in common, subject to their father's curtesy estate therein. Failing in their attempt to dispossess the said William G. Ardrey, the said heirs sought either to buy the interest of their father in said lands or sell their interest therein to him. Several propositions tending to that result were made by the respective parties; and thereafter, on the 27th day of September, 1901, by their quitclaim deed of that date, the said James T. Ardrey and his wife, Sophia, Evelena Burch and George Burch, her husband, Elzena Liter and her then husband, Charles Liter, William S. Ardrey and his said wife, Nora, remised, released, and quitclaimed to the said William G. Ardrey and his then wife, Margaret V. Ardrey, for the expressed consideration in said deed of the sum of $1,300, all of said 136-acre tract. That of said consideration the sum of $325 was in fact paid to each of said four heirs of Charity C. Ardrey, deceased. That after the death of Charity C. Ardrey, and prior to the execution of said mentioned deed, said William G. Ardrey married Margaret V. ____, who, as the surviving widow of said William G., is one of the defendants herein. That on the 31st day of December, 1901, said quitclaim deed was duly acknowledged by all of the grantors therein, and was duly recorded in the office of said recorder of deeds. That at the date of the execution by them of said quitclaim deed each of the four children of William G. Ardrey was of age, married, and not living with their father, and each of them had a separate home and domestic establishment. That they sold their said interest in said lands with full knowledge of the interest their father had in the same, having previously consulted a lawyer and by him been informed as to the nature and extent of such interest. That in the matter of the execution of said deed the said William G. Ardrey did not exercise any influence over his children, nor were their interests in said lands sacrificed, nor did they suffer any loss by reason of such conveyance. On the contrary, they received a fair and full consideration for the interest they conveyed; their father then being 56 years of age, and the value of the curtesy estate being in excess of the value of the remainder interest; and said lands were at the date of said quitclaim deed not worth over $10 per acre. The said transaction was characterized by fairness, and was without any fraud or semblance thereof on the part of the said William G. Ardrey.

"The court further finds that, of said consideration paid to said heirs for said lands, six-thirteenths thereof, to wit, the sum of $600, the separate money and means of said Margaret V. Ardrey, was by her said husband, he having the same in possession at the time, paid to said heirs as part of the purchase price, and not with the written consent of the said Margaret V. Ardrey. The fact of such payment was testified to by the defendant Margaret V. Ardrey as a witness in the case, testifying therein in behalf of plaintiffs, and was conceded by counsel for defendants in their briefs furnished the court. The fact of such payment prevented said quitclaim deed from creating an estate by the entirety in said William G. Ardrey and his wife. If, after such conveyance, Margaret V. Ardrey had died before her husband, it clearly appears that neither he nor his heirs after him could be heard to claim that he took the entire estate as surviving tenant by the entirety. If it were such estate as to one, it was as to the other. It would be an estate by the entirety as to both, or as to neither. The court finds and declares as a proposition of law that, under and by virtue of said quitclaim deed, the grantees therein took title in and to said lands as tenants in common; the said William G. Ardrey thereby becoming the owner of an undivided seven-thirteenths interest in said 136-acre tract; and his wife, Margaret V. Ardrey, thereby becoming the owner of an undivided six-thirteenths interest in said 136-acre tract, subject to the said curtesy estate therein of the said William G. Ardrey.

"The court further finds: That there were born to the said William G. Ardrey and his wife, Margaret V. Ardrey, two children, defendants herein, viz., Pansy L. Ardrey and Clifton Ardrey, the latter of whom is a minor, duly served with process herein and represented herein by his duly appointed guardian ad litem herein, the said Margaret V. Ardrey; that on the ____ day of ____, 1901, the said William G. Ardrey and his wife signed, and on the ____ day of ____ 1901, acknowledged, a certain quitclaim deed purporting to convey to their said two children, Pansy L. and Clifton Ardrey, the above-described 136 acres. That said last-mentioned deed, after the signing and acknowledgment of the same as aforesaid, was by the grantors named therein put away and kept at their home, among their papers, and was continuously in their possession during the said William G.'s life, and thereafter remained in the possession of said Margaret V. Ardrey until January 4, 1910, when she duly filed the same for record in the office of said recorder of deeds, and with the intent thereby to pass the title to the lands in...