Parker v. Blakeley, 33587.

CourtUnited States State Supreme Court of Missouri
Citation93 S.W.2d 981
Docket NumberNo. 33587.,33587.
PartiesJOHN A. PARKER and THOMAS J. CONDUITTE and LYDA PARKER v. LENAH L. BLAKELEY, Appellant.
Decision Date23 April 1936
93 S.W.2d 981
JOHN A. PARKER and THOMAS J. CONDUITTE and LYDA PARKER
v.
LENAH L. BLAKELEY, Appellant.
No. 33587.
Supreme Court of Missouri.
Division One, April 23, 1936.

[93 S.W.2d 982]

Appeal from Howard Circuit Court. — Hon. A.W. Walker, Judge.

REVERSED AND REMANDED (with directions).

Ed. S. Jones, Lionel Davis, W.F. Wilkinson and W. Raleigh Gough for appellant.

(1) This cause is one in equity, and in determining the issues herein the findings of the trial court are not conclusive upon this court, which may make its own findings under the evidence in the case. Wolfersberger v. Hoppenjon, 68 S.W. (2d) 814; Peniston v. Hydraulic Press Brick Co., 234 Mo. 698, 132 S.W. 532; Cuthbert v. Holmes, 14 S.W. (2d) 444. (a) This court will make its own findings, although it may defer somewhat to the findings of the trial court on conflicting testimony. Jones v. Jones, 333 Mo. 478, 63 S.W. (2d) 146; Fendler v. Roy, 331 Mo. 1083, 58 S.W. (2d) 459; Webb v. Salisbury, 327 Mo. 1123, 39 S.W. (2d) 1045. (2) The trial court erred in refusing to sustain defendant's motion to strike all the testimony relating to the Macon County and the Wyandotte County land transactions. (a) The evidence as to those transactions was not sufficient to show such a necessary similarity between those transactions and the transaction in suit as to impart any relevancy to the evidence on such extraneous issues. 22 C.J. 743. (b) The evidence as to those land transactions, even if "connected up" with the transaction in suit, was only admissible to show the intent of defendant, and not to show fact that she received title in trust. Powell v. Railroad Co., 229 Mo. 246, 129 S.W. 963; Rice v. Lammers, 65 S.W. (2d) 151; Van Ravensway v. Covenant Mut. Life Ins. Co., 89 Mo. App. 73; Tracy v. McKinney, 82 Mo. App. 506. (3) Under all the evidence, according to it a construction most favorable to plaintiff, no case of a resulting trust was made, and the decree should have been for defendant. 65 C.J., pp. 221, 225, 379; Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1031; Italiani v. Higbee Coal Mining Co., 331 Mo. 362, 53 S.W. (2d) 1050. (a) The deed from plaintiff reciting a valuable consideration, plaintiff may not attack such conveyance for the purpose of showing there was no consideration therefor and that the grantee did not take a beneficial title. Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022; 65 C.J. 380; Weiss v. Heitkamp, 127 Mo. 30. (b) Said deed, by its terms vesting an absolute title in defendant, may not be attacked by plaintiff so as to show that the defendant received title in trust under a void parol trust. Heil v. Heil, 184 Mo. 665, 84 S.W. 45; Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022. (4) Under all the evidence in the case, according to it a construction most favorable to plaintiff, plaintiff made no case of a constructive trust and the judgment should have been for defendant. (a) Fraud is the very essence of a constructive trust. Ferguson v. Robinson, 258 Mo. 113, 167 S.W. 452. (b) Defendant did not occupy a confidential or fiduciary relationship toward plaintiff. 65 C.J., pp. 483, 486; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118. (c) The mere breach of an alleged parol agreement to hold in trust is not such a fraud as to give rise to a constructive trust. 65 C.J., pp. 458-459, 470-471, 486; Ferguson v. Robinson, 258 Mo. 113, 167 S.W. 452; Beach on Modern Equity Jurispr., sec. 234; Long v. Conrad, 42 S.W. (2d) 357; Young v. K.C. Life Ins. Co., 329 Mo. 130, 43 S.W. (2d) 1046; Gates Hotel Co. v. Real Estate Co., 331 Mo. 94, 52 S.W. (2d) 1011; Kellum v. Smith, 33 Pa. 164; Weiss v. Heitkamp, 127 Mo. 31.

Walker Pierce and Calvin, Vandeventer & Kimbrell for respondents.

(1) Counsel for respondents readily concede that the rules of law, as contended for by appellant in her brief, to the effect: (a) That an express trust may not be established by parol evidence; (b) That a resulting trust may be established by parol evidence; (c) That evidence necessary to establish a resulting trust must be so clear, cogent and convincing as to establish such a trust beyond a reasonable doubt; and, (d) That, in equitable actions, the findings of the trial court are not conclusive upon the appellate court; and that such appellate court will examine the evidence for itself and arrive at and make its own findings; are so universally recognized by our courts that a citation of authorities in support thereof is rendered wholly unnecessary. (2) It is, also, a well-recognized rule of law that, while, in equity cases, an appellate court is not bound by the conclusions and findings of the chancellor, and will arrive at its own conclusions and make its own findings, from the evidence, it will, nevertheless, in reviewing the evidence, defer somewhat to the conclusions and findings of the chancellor, upon conflicting evidence, and give consideration to the chancellor's opportunity to weigh the evidence. Webb et ux. v. Salisbury, 327 Mo. 1123, 39 S.W. (2d) 1045; Fendler v. Roy, 331 Mo. 1083, 58 S.W. (2d) 459; Jones v. Jones, 333 Mo. 478, 63 S.W. (2d) 146. (3) The testimony adduced on behalf of the plaintiffs was legally sufficient to establish an implied or resulting trust in favor of the plaintiff, John A. Parker, one of the respondents herein; and, therefore, the court very properly found that such a trust existed in his favor, and did not err in entering its decree accordingly. Sec. 3105, R.S. 1929; 65 C.J., secs. 12D, 13E, 14F, p. 221, sec. 72, p. 303, sec. 92, p. 332, secs. 139, 140, p. 363, sec. 141, p. 366, sec. 150, p. 373, sec. 201, p. 437, sec. 202, p. 439, sec. 224, p. 472, sec. 229, p. 483; Bryan et ux. v. McCaskill, 284 Mo. 583, 225 S.W. 682; Norton v. Norton, 43 S.W. (2d) 1024; Janssen v. Christian, 57 S.W. (2d) 692; Elliott v. Landis Machine Co., 236 Mo. 546, 139 S.W. 356; O'Day v. Annex Realty Co., 191 S.W. 41; McNeill v. McNeill, 243 N.Y. Supp. 88; Carlson v. Smith, 236 N.W. 387; Catherwood v. Morris, 345 Ill. 617, 178 N.E. 487; Tate v. Emery, 9 Pac. (2d) 136; Railway, etc., Co., v. United States, 56 Fed. (2d) 687; Martin v. Diaz, 12 Pac. (2d) 57; People v. American Trust Co., 262 Ill. App. 458; Botkin v. Pyle, 14 Pac. (2d) 187; Power Co. v. West Virginia Co., 166 S.E. 536; Eliason v. Stephens, 246 N.W. 777; McDonnell v. Holden, 185 N.E. 572; Vance v. Grow, 185 N.E. 335; Tri-City Elec. Co. v. Jarvis, 185 N.E. 136; Lewis v. Schafer, 20 Pac. (2d) 1048; Orth v. Orth, 145 Ind. 184, 44 N.E. 17, 32 L.R.A. 298; Brown v. Doane, 86 Ga. 32, 12 S.E. 179, 11 L.R.A. 381. (4) The court did not err in permitting the deposition of the plaintiff, Thomas J. Conduitte, to be read in evidence, (a) because he was a party plaintiff upon the trial of this cause, and (b) because certain testimony contained therein was competent on behalf of the plaintiffs, John A. Parker and Lyda Parker, the respondents herein. (5) The admissions of the defendant, Lenah L. Blakeley, were competent as evidence tending to establish the creation and existence of a resulting trust in favor of the plaintiff, John A. Parker; and, considered together with her testimony, acts and conduct, such admissions constituted sufficient proof of the existence of such a trust. 65 C.J., sec. 202, p. 439; Ringo v. Richardson, 53 Mo. 395; Daudt v. Steiert, 205 S.W. 222; Johnson v. Jameson, 209 S.W. 919. (6) The court very properly found against the defendant on the issue of adverse possession. 62 C.J., sec. 31, p. 424, secs. 32, 34, 35, p. 426, sec. 43, p. 434, sec. 44, p. 435; Peterson v. Laik, 24 Mo. 541; Warfield v. Lindell, 30 Mo. 272; Robidoux v. Cassilegi, 10 Mo. App. 516, affirmed in Robidoux v. Cassilegi, 81 Mo. 459; Baber v. Henderson, 156 Mo. 566, 57 S.W. 719; Stevens v. Martin, 168 Mo. 407, 68 S.W. 347; Golden v. Tyer, 180 Mo. 196, 79 S.W. 143; Chapman v. Kullman, 191 Mo. 237, 89 S.W. 924; Allen v. Morris, 244 Mo. 357, 148 S.W. 905; Hynds v. Hynds, 253 Mo. 20, 161 S.W. 812; Miller v. Corpman, 301 Mo. 589, 257 S.W. 428; State ex rel. Festor v. Stead, 64 Mo. App. 453.

FERGUSON, C.


This is a suit in equity involving title to 210 acres of land situate in Howard County. The petition is in two counts. In the first count plaintiffs seek the cancellation of two deeds, one from plaintiff Conduitte to defendant and the other from plaintiff Parker to defendant, and pray the court to determine title to the lands. The second count is for partition. The petition states two separate causes of action, one by plaintiff Conduitte and the other by plaintiff Parker. No point was made of this however and the two suits were tried together. On a trial of these suits in the Circuit Court of Howard County the chancellor found against the Conduitte claim and no appeal was taken from the judgment thereon. In the Parker suit the decree and judgment was for plaintiff, on both counts of the petition, and defendant has appealed therefrom. Therefore only the Parker suit is here and we shall confine ourselves, for the most part, to that portion of the pleadings and evidence relating to that claim. It is conceded that if plaintiff is entitled to recover under the first count of the petition he is entitled

93 S.W.2d 983

to partition under the second count. The appeal then is directed to the court's decree and judgment on the first count.

Plaintiff Parker and defendant Lenah L. Blakeley are brother and sister. Parker is a physician and surgeon with offices in Kansas City, Missouri. He has practiced medicine and surgery since 1902. At the time of the trial, in 1933, he was fifty-seven years of age. The defendant, formerly Lenah L. Parker, married Harold G. Blakeley in 1906, and has since that time resided in Kansas City, Missouri. At the time of and from the marriage in 1906 until his death in 1930, Harold G. Blakeley was engaged in the real estate business in Kansas City. Mrs. Blakeley was a few years older than her brother, Dr. Parker. At the time of the death of Mariah L. Parker, the mother of Dr. Parker and Mrs. Blakeley, on...

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