Reed v. Sperry

• Decision Date: 31 January 1906
• Parties: REED et al. v. SPERRY et al.
• Court: Missouri Supreme Court

91 S.W. 62

193 Mo. 167

REED et al. v. SPERRY et al.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

TRUSTS—EVIDENCE TO ESTABLISH.

Evidence, in an action to establish a resulting trust in land, title to which was taken in a husband's name, on the theory that it was bought with the wife's separate property, held insufficient to establish it.

Appeal from Circuit Court, Daviess County; Joshua W. Alexander, Judge.

Action by Alice Reed and others against Samuel Sperry and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Hewitt & Hewitt and James T. Blair, for appellants. Hubbell Bros. and Harber & Knight, for respondents.

BURGESS, P. J.

This is an action, begun by plaintiffs against the defendants in the circuit court of Daviess county, the object and purpose of which is to have the title to 120 acres of land, described in the petition, the legal title to which is now in defendant Samuel Sperry, declared to be held by him in trust for the plaintiffs.

The petition, in substance, states that the plaintiffs, Alice Reed, Lelia Hill, and Forest Sperry, and the defendants, William Sperry, Nearest Sperry, and Ruby Sperry are the only children of the defendant Samuel Sperry and his wife, Miram Sperry, now deceased; that defendants William, Nearest, and Ruby Sperry are necessary parties to a complete determination of the questions involved in this controversy, and they are made parties defendant because they refused to join as plaintiffs herein; that the said Miram, wife of the said Samuel Sperry and the mother of the other parties to this suit, died about the 20th day of September, 1887; that prior to her death she inherited from her mother and, by reason of such inheritance, came into the possession of valuable real estate, to wit, the N. W. ½ of the N. W. ¼ of section 14, and 13 acres out of the S. E. ¼ of the S. W. ¼ of section 11, all in township 60, range 29, situate, lying, and being in Daviess county, Mo.; that thereafter, to wit, on the 27th day of July, 1880, the said Miram and her husband, Samuel Sperry, conveyed by warranty deed the said 13 acres of land to one John Burton for and in consideration of the sum of $216.66; that on the 7th day of November, 1881, she again joined with her said husband in a warranty deed whereby she conveyed to one Lewis L. Walls, in consideration of the sum of $700, the said N. W. ¼ of the N. W. ¼ of section 14, township 60, range 29; that thereafter, to wit, on the 14th day of March, 1883, the said defendant Samuel Sperry purchased from one David Koger, for and on behalf of his wife, the said Miram, the following described lands, lying and being in Daviess county aforesaid, to wit, the W. ½ of the N. W. ¼ and the N. W. ¼ of the S. W. ¼, all in section 7, township 60, range 29, and paid for said lands the money of plaintiffs' mother, the said Miram, and wrongfully, and without the knowledge or consent of plaintiffs' said mother, took the title to the aforesaid described lands so purchased from said Koger in his (the said Samuel's) own name. The petition further alleges that the said defendant Samuel withheld the knowledge of the fact that the title to the lands purchased from Koger was taken in his (Samuel's) name, and wrongfully neglected to advise said Miram of said fact, but fraudulently concealed the same from her, and that she died without knowledge of said fact. The petition further alleges that plaintiffs first learned of the facts therein stated less than one year prior to the filing of the petition. Plaintiffs further state that the title to the W. ½ of the N. W. ¼ of section 7, township 60, range 29, aforesaid, is still vested in said defendant Samuel Sperry, but that on the 6th day of June, 1896, he sold and conveyed to one Henry F. Elliott the N. W. ¼ of the S. W. ¼ of said section 7, township 60, range 29, for which he received the sum of $1,000. Wherefore, the plaintiffs say that, by reason of the premises aforesaid, said defendant, Samuel Sperry, holds the title to the said W. ½ of the N. W. ¼ of section 7, aforesaid, in trust for them, and that he has wrongfully converted to his own use the said $1,000; that before the commencement of the suit they demanded of the said Samuel Sperry that he convey to them their interest in the said W. ½ of the N. W. ¼ of section 7 aforesaid, and that he pay to them their portion and share of the said sum of $1,000 received from the said John F. Elliott, as the purchase price and consideration received for the said lands sold and conveyed to him, but that said defendant Samuel Sperry refused to do so or to accede to said demand. Wherefore, the plaintiffs pray the court to declare the title to the lands aforesaid, so vested in the said defendant Samuel, be held by him in trust for plaintiffs; that said title be divested out of the said defendant Samuel, and vested in the plaintiffs; and that he be required to pay the plaintiffs their share of the said sum of $1,000, with interest from the 6th day of June, 1896, and for all other proper relief.

Defendants, by leave of court, filed an amended answer, in which they deny each and every allegation in the petition contained. Further answering, they allege that there is a defect of parties plaintiff, and that the cause of action or ground of relief set up in plaintiff's petition is an entirety and cannot be subdivided. Further answering, they allege, in substance, that any cause of action or ground of relief set forth by plaintiffs is barred by the five years' statute of limitations, and accrued more than five years next before the commencement of this suit; that any cause of action or ground of relief set forth in the petition accrued more than ten years prior to the commencement of this suit; that any cause of action or ground of relief mentioned in said petition accrued to Miram Sperry in her lifetime, and that plaintiffs failed to sue within three years after her death; that plaintiffs failed to sue within three years after becoming 21 years of age. Plaintiffs filed a reply to the answer which in effect denies all allegations as to the new matter therein contained.

Mrs. Miram Sperry's mother, Eliza Burton, died the owner of a large body of land in Daviess county, which was, on the 14th day of June, 1880, duly partitioned among her heirs, and said Miram was allotted 53 acres thereof as her share in said lands. Plaintiffs claim that on the 21st day of July, 1880, she and her husband, the said Samuel Sperry, sold and conveyed the said 13-acre tract to John Burton, her brother, for $216.66, and on the 7th day of November, 1881, she and her said husband sold and conveyed to one Lewis L. Walls the remaining 40 acres for the sum of $700, $200 of which was paid in cash, and to secure the remaining $500 of the purchase price...