Philpot v. Penn
| Decision Date | 14 February 1887 |
| Citation | 3 S.W. 386,91 Mo. 38 |
| Parties | Philpot, Appellant, v. Penn et al |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. J. B. Gantt, Judge.
Affirmed.
P. H Holcomb for appellant.
The evidence clearly and conclusively establishes the facts to be substantially as stated in the petition, and from these facts a resulting trust arises in favor of appellant, which entitles him to the relief prayed for. A resulting trust may be proved by parol testimony. Groves v. Fulsome, 16 Mo. 543; Cason v. Cason, 28 Mo. 47; Johnson v Quarles, 46 Mo. 423. Such testimony is admissible after the death of the nominal purchaser. Perry on Trusts, sec 138; Bispham's Equity, sec. 83; Kennedy v. Kennedy, 57 Mo. 73. A less degree of certainty in the evidence would be required, where the nominal purchaser never exercised any act of ownership under his title. Ringo v. Richardson, 53 Mo. 396. Under the facts proved, the plaintiff ought to have the relief prayed for. Carman v. Johnson, 20 Mo. 108; Kelly v. Johnson, 28 Mo. 249. When one person pays the purchase money for land, and the title is conveyed to another, a trust results in favor of the party who paid for the land.
John T. Smith for respondents.
(1) The evidence in this cause is not sufficiently clear, certain, and convincing to establish a trust. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Modrell v. Riddle, 82 Mo. 31; Marsh v. Whitmore, 21 Wallace, 184. (2) Where one person enters land in the name of another, in evasion of, or in violation of, any regulation or law of the land office, neither equity nor law will aid him in enforcing his trust. 6 Wend. 228; Miller v. Davis, 50 Mo. 572; Higgins v. Higgins, 55 Mo. 346. (3) Plaintiff having failed to plead or prove any fact explaining his delay in bringing this action, the chancellor should not listen to him. Walker v. Ray, 20 Cent. Law Jour. 137; Lansdale v. Smith, 16 Cent. Law Jour. 28; State ex rel. Polk Co. v. West, 68 Mo. 229; Bliss v. Pritchard, 67 Mo. 181, and cases there cited; Badger v. Badger, 2 Wall. 94; Marsh v. Whitmore, 21 Wall. 184.
It appears, from the record in this case, that, in 1857, at the United States land-office in Warsaw, a certain military land warrant for eighty acres of land, which had been issued to one Francis Sudbury, and by her assigned to S. Milton Penn, was located on 76.93 acres of land in Bates county, and a certificate of entry issued to said S. Milton Penn, who died in 1876, leaving as his heirs the defendants in this suit, against whom the suit was instituted in the Bates county circuit court in 1883, for the purpose of having the court decree, that the land so entered was held by said Penn and his heirs in trust for plaintiff.
The plaintiff, in his petition, bases his claim to the relief asked on averments therein made, to the effect that one E. S. Penn was the real owner of said land warrant; that the consideration for the assignment thereof, by said Sudbury, was wholly paid by him, and that the assignment to said S. Milton Penn was so made that he might hold the same in trust for the said E. S. Penn; that the said E. S. Penn located said warrant on the land in question, and took the certificate of entry in the name of S. Milton Penn; that said Milton Penn, by his writing, in due form assigned and transferred said certificate of entry to said E. S. Penn, who, on December 16, 1857, for a valuable consideration, sold and conveyed the land, by his deed, duly executed, to M. W. Dallas, and also assigned to him the certificate of entry; that said Dallas, on the sixteenth day of July, 1859, conveyed the land, by his deed, to plaintiff; that said certificate has been lost; that a patent issued from the general land office on the third day of January, 1860, conveying said land to S. Milton Penn; that, while the record of conveyances shows the apparent title to said lands to be in S. Milton Penn, or his heirs, they have no real interest therein, but hold the same in trust for plaintiff. The answer of defendants, besides being a general and specific denial, sets up that S. Milton Penn died a long time after he had taken out a patent to the land in his own name, which was issued after the alleged assignment of the certificate of entry, and that plaintiff and his grantors were duly apprised thereof, but failed and neglected to question his title during his lifetime. On the hearing, the trial court dismissed the bill, and it is this action of the court we are asked to review on plaintiff's appeal.
Plaintiff put in evidence a deed to the land in controversy, from E. S Penn to M. W. Dallas, dated December 16, 1857, and filed for record October 3, 1876; also, a deed from said Dallas to S. B. Philpot, the plaintiff, dated July 16, 1859, and filed for record October 3, 1876; also tax receipts showing payment by plaintiff of taxes from the years 1873 to 1883 inclusive, except the year 1876. E. S. Penn, whose deposition was taken in 1884, testified that he entered the land in dispute in the name of S. Milton Penn, at the land office, in Warsaw, on the fifteenth day of December, 1857, with a land warrant which he owned; that, shortly after he entered it, the certificate was assigned to him by S. Milton Penn, who resided in the state of Ohio; that he sold the land to M. W. Dallas for two dollars per acre, and passed all title papers in his possession to him; that S. Milton Penn, at the time he sold, had no interest in the land. He further testified that he dealt considerably in western lands, and that, in October, November, and December, 1857, he purchased for himself and others, at the land office, thirty thousand acres, and in 1858, over fifty thousand acres for himself, and as agent for other parties; that the number of persons interested in the lands purchased was probably over one hundred; that what he said about the land in controversy was purely from memory; that he might be mistaken as to his ownership of the land in question, but it was not probable; that his memory was not as good now as it was years ago, and for the last six months has been very bad at times by reason of a severe injury; that S. Milton Penn was his brother, and died in 1876; that the relations between them were unfriendly from 1875 up to the time of his death; that over twenty-six years had elapsed since the transactions occurred about which he was testifying; that, owing to the rush of persons at the land office to enter lands, the register would not permit one person to enter more than three hundred and twenty acres, and, in order to evade said regulation, he made entries in the names of various friends of his, who afterwards conveyed by assignment of certificates of entry or quit-claim; that...
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