Norton v. Norton

• Decision Date: 05 September 1931
• Docket Number: No. 28556.,28556.
• Citation: 43 S.W.2d 1024
• Parties: NORTON et al. v. NORTON et al.
• Court: Missouri Supreme Court

43 S.W.2d 1024

NORTON et al. v. NORTON et al.

No. 28556.

Supreme Court of Missouri, Division No. 1.

September 5, 1931.

Motion for Rehearing Overruled November 20, 1931.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

Suit by James P. Norton and others against Daniel B. Norton and others. From a decree dismissing the bill, plaintiffs appeal.

Affirmed.

C. W. Prince, James N. Beery, and W. H. Allen, all of Kansas City, for appellants.

Cooper, Neel, Kemp & Sutherland, of Kansas City, for respondents.

FERGUSON, C.

This is a suit in equity to establish a trust. The four plaintiffs and three defendants are seven of the eight surviving children of John and Margaret Norton, both deceased. Title to lot 20, block 18, Hyde Park addition in Kansas City, Mo., was vested by the entirety in John and Margaret Norton, husband and wife. John Norton died in 1914, and the title thereupon vested in the surviving wife, Margaret Norton. In 1916, Margaret Norton conveyed said lot 20 by general warranty deed to the defendant Thomas F. (Frank) Norton, who is referred to throughout the record and in this opinion as Frank Norton. The consideration stated in the deed is "one dollar and other valuable considerations." Margaret Norton died, April 22, 1922.

The bill alleges: That said conveyance was made under a "parol agreement whereby defendant, Thomas F. Norton, was to take and hold the title to said real estate for and on behalf of said Margaret Norton to the end that a loan for a large amount of money be negotiated on said real estate for the use in the construction of a large hotel building on said lot and another lot adjoining on the south, the legal title to which latter lot was in said Thomas F. Norton and the defendant, Daniel B. Norton"; and that "the motives and purposes of said defendant, Thomas F. Norton, was to deprive said Margaret Norton of her title to said property and incidentally and ultimately deprive these plaintiffs of their just inheritance." The bill further states that the defendants employed devices and schemes to prevent the plaintiffs from visiting their mother during the last years of her life, and that the mind of said Margaret Norton became weakened and enfeebled by sickness, worry, and the infirmities of age; "that because of the fraudulent acts aforesaid, the defendants have collected and realized large revenue from said property and converted same to their own use and benefit and are asserting absolute ownership of said property; * * *" "That Thomas F. Norton was the confidential agent of his mother, Margaret Norton, and employed such position to the disadvantage of his mother and to his own benefit and enrichment." The bill concludes with the prayer that "the court declare said Thomas F. Norton trustee for these plaintiffs with respect to their interest in the aforesaid property, and make an order requiring said defendants to execute a deed conveying to each of these plaintiffs his or her respective interest, to-wit, an undivided one-eighth interest in said property and that an accounting be had and the said defendants be required to account to these plaintiffs for respective shares in the proceeds and rentals of said property, and interest thereon at the rate of eight per cent. per annum, and for such other and further relief as to the court may seem just and equitable." The answer was a general denial. Upon a hearing, the chancellor found for the defendants and "ordered and decreed plaintiffs' bill or petition be dismissed." Plaintiffs appealed.

The record is voluminous, containing as it does a history of the Norton family from 1864 to the date of the trial in 1927, with numerous details, incidents, conversations, statements, assertions, contradictions, and denials, and testimony offered solely as affecting the credibility of certain witnesses. However, the writer undertakes to make a summary of the facts disclosed by the testimony.

In 1870, John and Margaret Norton were farming in Illinois, where they continued to reside until they moved to another farm near Bloomington, Ill. At that time there were six children: The plaintiffs Mary Jane, born in 1864; Anna, born in 1866; Margaret, the third child, the date of whose birth is not given; and James, born in 1872; the defendant Daniel, born in 1870; and a son Johnnie, born about 1874. We do not discover how long the family resided near Bloomington, Ill., but after living there awhile John Norton decided to move to Kansas, with the intention of farming in that state. He owned several teams of horses, and at Mexico, Mo., met contractors engaged in grading the roadbed for the Chicago & Alton Railroad into Kansas City, Mo., who employed Norton with his teams on that work, whereupon he abandoned his plan to go to Kansas and continued on the grading work until he and his family reached Kansas City, about the year 1878. In Kansas City he continued to employ his teams at such work as he was able to obtain, and after some months there bought a lot, paying $300 therefor, and built a small house which was the family home for about a year and a half. Norton then moved with his family to a farm near Clarinda, Iowa, where they remained about eleven months. While in Iowa, Mrs. Norton went back to Kansas City and sold the property there for $1,000, which money was used in paying the debts and living expenses of the family. Late in the year 1882, the family returned to Kansas City, Mo. The children now numbered eight. Catherine had been born after the family came from Illinois to Missouri, but the date of her birth is not stated; and the defendant Theresa was born at Clarinda, Iowa, in 1882. We note here that the daughter Catherine is not a party to this suit and did not testify. It is stated in the testimony that her home is now in the state of California, where it appears she has continuously resided for many years and long prior to the happening of the events made the basis of this suit.

Returning with his family to Kansas City in 1882, Norton engaged in grading and excavating work. He owned several teams, wagons, and equipment. John Norton was an illiterate man, could not read or write, and depended largely upon his wife to manage their small business affairs. His work consisted mostly of "small jobs," and, with a large family to support, he had a hard struggle. The father's uncertain and ofttimes scant earnings were supplemented by "keeping boarders." The girls were kept from school to assist the mother in the household work. In 1884 the last child, the defendant Frank, was born. The boys, Dan, Johnnie, James, and Frank were put to work, at the age of eleven or twelve years, driving teams and helping their father, and at times when the father had no excavating or grading work upon which to employ his teams they would be hired to others with the boys as drivers, and the boys would be sent to work wherever work could be obtained for them. The boys received no wages from their father, and, when working for others, the father and mother collected their earnings which went into a common fund for the support of the family. The children received very little schooling. However, Dan reached the fourth grade before he was required to quit school. Frank started "teaming" at the age of eleven, and was compelled to quit school and work regularly at the age of thirteen. However, at the age of twenty or twenty-one, when he was working for himself, he attended a business college for awhile.

For some years after the return to Kansas City in 1882, the family moved at frequent intervals from one rented house to another, and, from 1882 to 1896, lived in ten different rented houses. During this period, John Norton purchased a twenty-five foot lot and built a house where the family lived for about nine years. This house was mortgaged, and in 1894 the equity therein was traded for a lot at Fifth and Harrison streets. The oldest girl, Mary Jane, married a man named Foster in 1889 and left the Norton home. The Fosters resided in Kansas City for five or six years, then moved to St. Louis, and later to Kentucky. In 1894, Margaret married William C. Geary and she and her husband established their own home. Anna left the Norton home in 1895 when she married Henry Hunt. These three daughters after marriage did not contribute anything to the support of their parents or the maintenance of the Norton home. In 1896 the family, then composed of the father, mother, Johnnie, James, Catherine, Theresa, Dan, and Frank, moved into a rented house at Fifteenth and Campbell streets. James who was then about twenty-five years of age married that year, left the parental home, and never afterwards contributed anything to the support of his parents or the maintenance of their home. Johnnie died about the year 1897. In the year 1897, the family, then composed of the father, mother, Catherine, Theresa, Dan, and Frank, was ejected from the house at Fifteenth and Campbell streets for nonpayment of rent, and thereupon moved into a house at 2329 Locust street, which rented for $17 a month. Dan was now twenty-seven years of age and was contributing all his earnings to the support of the family. Frank was working as a teamster for his father and others, and his earnings were applied to the support of the family. It appears that in the years from about 1895 to 1900, the small contracting jobs the father was able to get were not profitable, and the maintenance of the home required the common and united efforts and labors of all the members of the family as it was then composed. In the year 1898, when they had occupied the Locust street home for about a year, the owner offered to sell the house to the Nortons on monthly installments of "a little bit more" than the monthly rent they were then paying. Mrs. Norton wanted to purchase the property as a home, and Dan and Frank both testify that they bought the property upon the proposed terms as a home for their parents, with the deed made...