OPINION
WHITE
J.
An
action to establish a trust. On the opening of the case
plaintiffs' counsel said they were seeking to establish a
resulting trust, or a trust ex maleficio. The defendants
objected, asserting that an express trust was sought to be
established by parol. The first amended petition upon which
the case was tried, omitting caption, is as follows:
'First
Amended Petition.
'Plaintiffs
state: That on or about the 5th day August, 1915, they were
the owners of an undivided one-sixth interest in the
following described real estate situated in St. Clair county
Mo., to wit: East half of lot 3, and all of lot 4 of the
northeast quarter of section 5, township 39, range 25, and
that defendant Hopson Park was the owner of an undivided
interest in said real estate, and that undivided interests in
said land were owned by various other parties. That on or
about the date as aforesaid, defendant Hopson Park
represented to plaintiffs that he was endeavoring to acquire
or purchase the interests of said other parties in said land
and asked plaintiffs to convey their interest in said land to
him, representing to plaintiffs that a loan upon this
property and other property could be negotiated, or that a
sale of this and other property could be made on more
advantageous terms if the apparent legal title thereto was
vested in one person. That in pursuance of such
representations of defendant Hopson Park, plaintiffs, on or
about the 5th day of August, 1915, conveyed their said
undivided one-sixth interest in said lands to defendant
Hopson Park for the purpose of vesting the apparent legal
title to the whole thereof in defendant Hopson Park, so that
a loan could be negotiated or a sale of said property could
be made more advantageously. That defendant Hopson Park has
made no accounting to plaintiffs for their one-sixth interest
so conveyed.
'Plaintiffs
state: That they are now informed and believe that defendants
have arranged a contract for the sale of said land, and that
defendants deny plaintiffs' interest in said land, and
decline to account to plaintiffs for the sum received or to
be received from the sale of said land. That defendant Phoebe
Park is the wife of defendant Hopson Park, and has no
beneficial interest in said land, but that she apparently
seized of her inchoate right of dower therein, and is made a
party defendant for that reason.
'Wherefore
plaintiffs pray the court that defendants be ordered,
directed, and required to convey to plaintiffs a one-sixth
part of said real estate hereinbefore described or that
defendants be required to produce and exhibit to the court
any contract of sale affecting said land, and to pay into
court for the use of plaintiffs one-sixth part of the
proceeds thereof, and that an accounting be had between
plaintiffs
and defendants, and for other and further orders in the
premises.
'V.
E. Phillips,
'Walso
P. Johnson,
'Attorneys
for Plaintiffs.'
The
answer, of defendants admitted that the plaintiffs in August,
1915, were owners of a one-sixth interest in the tract of
land described in the petition, and alleged that the
defendant Hopson Park was the owner of an undivided interest,
and that undivided interests in said land were owned by
various other parties; that Phoebe Park, the defendant, was
Hopson's wife; and denied all other allegations of the
petition. It then alleged that August 5, 1915, Hopson Park
bought and paid for the interest of plaintiffs in the land.
The trial court, on the facts shown, found for the defense
and rendered judgment accordingly. The plaintiffs appealed.
The
defendants objected to the introduction of any evidence, on
the ground that the petition failed to state a cause of
action, and again objected to the evidence of Overton Park
when he was asked to tell about the transaction in dispute.
The court overruled the objections. We quote the evidence at
some length because respondents claim a case was not made out
as alleged.
Speaking
of the defendant Hopson Park, Overton Park testified as
follows:
'Q.
Tell the court what representations he made to you? A. Well,
he came to me and wanted to get title to the land. He wanted
to get the land. He had part of the interest of the other
children, and wanted all of it. It was over there quite a
little ways from me. They divided it off to me; understand,
in a division of the land -- and I let him have it.
'Q.
Just state to the court all of those representations to you
about this transaction? A. Well, he came to me and wanted the
land. We talked quit a bit about it -- he came several times.
I told him he could have the land. He wanted to know what day
we could go and make a deed for him. I told him I had no way
to go to town; the boys were out with the teams helping
neighbors to thrash. He said he would take me to town, which
he did; came by in the afternoon and taken me and my wife to
town, and we made the deed.
'Q.
Did he or not say anything to you about trying to negotiate a
loan on his own land or on this land? A. Well, I don't
know; he might possibly have done that. I don't just
recollect exactly of it -- something about making a loan, and
he could sell it, or handle it better. I think possibly he
wanted to make a loan. I think that was the understanding. *
* *
'Q.
Four hundred dollars a share? A. Yes, sir.
'Q.
And if you had two shares -- that would be $ 800. What did he
say, if anything, about securing you, or executing papers in
any way to take are of you? A. He told me he would give me a
note and deed of trust for the land.
'Q.
Well, then, do you recollect the day on which you executed
this deed? A. Well, it was some time about the forepart of
August. I couldn't exactly remember the date, but it was
in August, 1915.
'Q.
Tell the court the circumstance of your execution of that
deed? A. We came in in his wagon. He taken me and my wife to
town. We went before J. B. Good, I think made the deed. He
said he was going to bring his wife with him and his wife was
sick at the time, and he didn't bring her. He said he
would come to Osceola and record the deed, and they would fix
up the deed of trust and leave it in the bank, with Mr. Good.
* * *
'Q.
Tell the court about that -- was it soon, or was it a year or
so afterwards -- when was it? A. Well, it might possibly have
been a year or so. I don't just recollect the exact time.
He told me at different times he wanted to pay it to me just
as quick as he could.'
The
witness then denied that he had ever received any
consideration from the defendant Hopson Park for the land.
On
cross-examination plaintiff further testified:
'Q.
What other times did he mention it to you? A. Well, we --
after the trade was made, you see, he wanted to get a deed
right away. He wanted to know when I could come. I told him I
had no way to come, he said he would bring his team and take
me and my wife down -- wanted us to come up with him the next
day. * * *
'Q.
He bought your interest for $ 800, didn't he? A. He
bought my two shares of land there at the same price that he
bought the others.
'Q.
Now was there any writings entered into or signed up in
connection with the transaction except the deed? A. No, sir;
we made him a deed to the land. He was to give us a note and
a deed of trust for $ 800. * * *
'Q.
The note and deed of trust for $ 800 was to be the entire
consideration, according to your statement, was it? A. Yes,
sir. * * *
'Q.
Now Overton, to refresh your recollection, wasn't it
agreed, at the time that the conveyance was made, that you
were to be credited with $ 800 on the sum that you owed
Hopson? A. No, sir.
'Q.
And didn't you so make that statement right here in the
corridor of this court house last March? A. I didn't. * *
*
'Q.
Didn't you state in that same conversation that you owed
Hopson for that eight hundred? A. Well, I owed him some, yes,
sir.
'Q.
And that you owed him for a note he paid up for you over at
Lowry City Bank? A. There was nothing said about that. Hopson
and me talked about that debt, but there was nobody else
present that I know anything about. * * *
'Q.
Now in your petition you state that you made this deed to the
land to Hopson, so he could borrow money and cancel it --
now, as I understood you a moment ago, you sold outright to
Hopson for the $ 800, and he was to have paid for it by a
deed of trust and note on the land securing it -- is that
correct? A. He was to pay me eight hundred on the land, and
give me a deed of trust and note to secure the $ 800.
'Q.
And that was to be your full payment for the land? A. Yes,
sir.
'Q.
Then your statement in your petition isn't true, is it?
A. I don't know what is in the petition. * * *
'Q. But you said now that you agreed on the price at $
800? A. Sure.
'Q.
And that you sold it for that sum? A. Yes, sir.
'Q.
And that you were to be paid by a deed of trust back on the
land that you sold him, to secure a note for $ 800? A. Yes,
sir.'
Overton
Park further testified that his brother Hopson agreed to
leave the note for the purchase money, and the deed of trust
covering the land, at the Lowry City Bank; that the note was
to be for $ 800.
It was
several months after he claimed the note would be due, and
more than 5 years after the deal was made, before Overton
Park ever inquired of Mr. J. B. Good, cashier, at the Lowry
City Bank, whether the papers were left there. During that
time Hopson Park paid him no interest. Overton never spoke to
Hopson about it, never asked him for interest, nor asked him
whether he ever left those papers at the...
