Price v. Kane
| Decision Date | 29 November 1892 |
| Citation | 20 S.W. 609,112 Mo. 412 |
| Parties | Price et al., Appellants, v. Kane, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court.
Affirmed.
C. M Napton for plaintiffs, appellants.
(1) When the husband purchases real property with his own means and causes the same to be conveyed to his wife, a prima facie case is made out that the husband intended the conveyance to be a provision for the wife, and no resulting trust will arise. Schuster v. Schuster, 93 Mo. 439. While the facts creating a resulting trust may be proved by parol, such evidence must be clear and unequivocal, and not merely preponderating. Kennedy v. Kennedy, 57 Mo. 73; Johnson v. Quarles, 46 Mo. 423; Ringo v Richardson, 53 Mo. 385; Forrester v. Scoville, 51 Mo. 268; Sharp v. Sharp, 60 Mo. 576; Philpot v. Penn, 91 Mo. 38. The evidence in this case does not meet the requirements of the law as to the first piece of property conveyed. (2) The evidence of M. Kinealy as to what occurred at the interview when the second conveyance was made was improperly admitted, and should not be considered in the case. Revised Statutes, 1889, sec. 8925; Johnson v. Sullivan, 23 Mo. 474. (3) No trust results to a husband who buys property and has it conveyed to his wife's trustees. Where an express trust is declared in writing, there can be no resulting trust. Alexander v. Warrance, 17 Mo. 231. (4) There can be no trust in this second piece of property, and the defendant cannot recover it because it was transferred for fraudulent purposes, and with an intent to hinder and delay future and past creditors. Bispham's Equity, sec. 83; Alexander v. Warrance, 17 Mo. 230; McClintock v. Loosseau, 6 Lawyers' Reports, 1889; Alwood v. Fish, 101 Mass. 863.
R. S. McDonald, M. Kinealy and J. R. Kinealy for defendant, appellant.
(1) The testimony of witness Kinealy as to what took place at his house concerning those conveyances, in presence of John J. Kane and his wife, was competent. Hebbard v. Haughran, 70 N.Y. 61; De Wolf v. Strader, 26 Ill. 230; Randel v. Yates, 48 Miss. 689; Borum v. Fouts, 15 Ind. 53; Hanlon v. Doherty, 109 Ind. 41; Whiting v. Barney, 30 N.Y. 332; Hatton v. Robinson, 14 Pick. 430; Caldwell v. Davis, 10 Col. 492; Gas Co.'s Appeal, 117 Pa. St. 521. (2) On the evidence in this cause we are entitled to a decree for a reconveyance of the property conveyed by John J. Kane to Kinealy, and by him to Owens' trustees for Elizabeth J. Kane. 1 Perry on Trusts, sec. 166, p. 191; sec. 194, p. 234; sec. 76, p. 61; Brison v. Brison, 75 Cal. 525; Wood v. Rabe, 96 N.Y. 426; Young v. Reach, 2 Atk. 254. (3) There is no evidence, showing or tending to show, that Kane made the deeds with intent to defraud his creditors. Cordova v. Lee, 14 S.W. 208; Kerrick v. Mitchell, 68 Iowa 273; Payne v. Stanton, 59 Mo. 158; Sheppard v. Thomas, 24 Kan. 780; Barr v. Cubbage, 52 Mo. 414; 2 Rice on Evidence, 351; Spalding v. Strong, 37 N.Y. 139.
Ejectment to recover two lots in the city of St. Louis. The answer was a general denial and an equitable defense. The latter charges that Elizabeth J. Kane was wife of defendant from 1865 to her death in 1888, and they resided in St. Louis at that time; that he was engaged in trading in horses and mules, and shipping and selling them in southern states and was necessarily from home much of the time; that June 17, 1869, he purchased the lot first described, and paid the purchase price, but at the request of his wife and for her convenience in managing the property as his agent, he had the deed made to his wife, with the agreement from her that it should be conveyed to him whenever he should request it; as to the second lot defendant charges that in 1883 he was seized in fee thereof, and his wife induced him, for like considerations of convenience, and with like agreement to reconvey on request, to convey the same to one Owens as trustee, for the use of his said wife; that his wife died unexpectedly, during his absence from home, without having conveyed either of said lots to him as agreed. Defendant prayed that the title be vested in him. The suit was by the nieces, as heirs at law, of the deceased wife of defendant. Defendant had a decree as prayed for the first lot, and plaintiffs recovered the second. Each party appeals.
I. It appears from the undisputed evidence that the wife of defendant Kane purchased the lot first described at auction, in the absence of defendant from the state, but for his use and benefit, and took the title in her own name at the suggestion of some of her friends. The purchase money was all paid by defendant. In such transactions between husband and wife the conveyance is presumably intended as a settlement upon, or provision for, the wife, but that presumption may be rebutted by parol evidence showing that no such intention actuated the parties. When it has been shown that the conveyance was not intended as an advancement or settlement, the grantee will be held to have taken the title to herself in trust for the use of her husband who furnished the purchase money. Darrier v. Darrier, 58 Mo. 222; Hall v. Hall, 107 Mo. 101, 17 S.W. 811, and authorities cited; Seibold v. Christman, 7 Mo.App. 254; Cotton v. Wood, 25 Iowa 43.
Not only did it appear from the evidence in this case, with but slight contradiction, that defendant paid the purchase money, but, contemporaneously with the purchase by Mrs. Kane, she declared unequivocally that the purchase was intended for her husband, and thereafter frequently declared that the property belonged to him, and she held the title only in trust for him. The judgment was properly rendered for defendant as to this lot.
II. As to the second lot the answer of defendant charged affirmatively that his business called him away from St. Louis much of his time and his wife requested him to convey the property to her promising to reconvey to him whenever he should desire to have it, and that, at her request, and on the faith of the promise to reconvey on demand, he conveyed it to one Michael Kinealy to be by him conveyed, or used, so as to be under the control of defendant's said wife, and that Kinealy for that purpose conveyed it to Owens as trustee.
The evidence shows that on the seventeenth day of February, 1883, defendant conveyed the lot by deed to Kinealy who on the same day conveyed to Owens in trust "for the sole and separate use of the said Elizabeth Kane, separate and apart from her said husband, and free of control or interference or marital rights of him, the said John J. Kane, and the said James Owens shall suffer and permit the said Elizabeth Kane to personally manage and use said property and collect the rents and proceeds thereof if it should be rented." The deed contained no suggestion of a trust in favor of the husband, or power of revocation.
Kinealy was an attorney who wrote the deeds, and testified on the trial as follows:
N. S Demmitt, a lawyer, testified: Mrs. Lavell testified that in a conversation about making a will Mrs. Kane had said to her that she had nothing to will but what belonged to John Kane. Mrs. Ford testified that Mrs. Kane told her that "everything there belonged...
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