Reed v. Sperry

• Decision Date: 31 January 1906
• Citation: 91 S.W. 62,193 Mo. 167
• Parties: REED et al., Appellants, v. SPERRY et al
• Court: Missouri Supreme Court

91 S.W. 62

193 Mo. 167

REED et al., Appellants, v. SPERRY et al

Supreme Court of Missouri, Division Two

January 31, 1906

Appeal from Daviess Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

Hewitt & Hewitt and James T. Blair for appellants.

(1) In this cause we have to deal with the most sacred of confidential relations, those between husband and wife. "It has always been found necessary to examine zealously into the transactions whereby the husband gets the advantage of the wife." "The doctrine to be examined arises from the very conception and existence of a fiduciary relation. While equity does not deny the possibility of valid transactions between husband and wife, yet every fiduciary relation implies a condition of superiority held by the one over the other in every transaction between them by which the superior party obtains a possible benefit." Witbeck v. Witbeck, 25 Mich. 439; Pomeroy, Eq., sec. 956. (2) Under the statutes concerning married women the money and securities received by the husband from the sale of the wife's land, inherited from her mother, became her separate property and remained such unless reduced by the husband to his possession by the assent of his wife in writing. Laws 1875, p. 61; Secs. 3295, 3296, R. S. 1899. (3) The investment by the husband of money from the proceeds of the sale of the wife's land inherited from her mother Elizabeth Burton's estate, in other lands and taking the title in his own name, constitutes him a trustee of an implied or resulting trust, and he held the legal title only for the benefit of the wife and her heirs. Broughton v Brand, 94 Mo. 169; Seay v. Hesse, 123 Mo. 450; Brown v. McKean, 82 Mo. 598; Baumgartner v Guessfield, 38 Mo. 37; Paul v. Chouteau, 14 Mo. 580; Stevenson v. Smith, 88 S.W. 86; Crawford v. Jones, 163 Mo. 577; Scrutchfield v. Sauter, 119 Mo. 615. (4) It will appear from a casual reading of the testimony in this cause that the rule which obtains in cases like this that the evidence should be something "more than a preponderance," i. e., it should be of a "most convincing character;" "all but conclusive," "beyond a reasonable doubt;" has been fully met. Crawford v. Jones, 163 Mo. 583; Prewitt v. Prewitt, 87 S.W. 1003; McMurray v. McMurray, 180 Mo. 533. (5) The relation of Sperry to his wife was of a fiduciary character, and that fact lightens the burden of plaintiffs. Shaw v. Shaw, 86 Mo. 597. The ownership of the money is the important feature in cases of this character, and we take it that the ownership was fully established in Miriam Sperry, Samuel's wife. Shaw v. Shaw, supra; Johnston v. Johnston, 173 Mo. 101; Baumgartner v. Guessfield, 38 Mo. 41; Depas v. Mays, 11 Mo. 314.

Hubbell Bros. and Harber & Knight for respondents.

(1) Plaintiff's evidence failed to measure up to the standard required by law. Burdett v. May, 100 Mo. 13; Crawford v. Jones, 163 Mo. 583; Curd v. Brown, 148 Mo. 92; Brinkman v. Sunken, 174 Mo. 715; Viers v. Viers, 175 Mo. 453. (2) The Supreme Court will defer to the decision of the chancellor below, on questions of fact. Bowen v. McKean, 82 Mo. 594; Mathias v. O'Neil, 94 Mo. 520; New England Loan & Trust Co. v. Browne, 177 Mo. 423; Shanklin v. McCracken, 151 Mo. 594; Mining Co. v. Mining Co., 106 Mo.App. 71; Gard v. Arnold, 157 Mo. 545; Cole v. Mueller, 187 Mo. 638.

OPINION

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 one hundred and twenty 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, Miriam 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 Miriam, 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 northwest half of the northwest quarter of section 14, and thirteen acres out of the southeast quarter of the southwest quarter of section 11, all in township 60, range 29, situate, lying and being in Daviess county, Missouri. That thereafter, to-wit, on the 27th day of July, 1880, the said Miriam and her husband, Samuel Sperry, conveyed by warranty deed the said thirteen 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 northwest quarter of the northwest quarter 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 Miriam, the following described lands, lying and being in Daviess county aforesaid, to-wit, the west half of the northwest quarter and the north-west quarter of the southwest quarter, all in section 7, township 60, range 29, and paid for said lands the money of plaintiffs' mother, the said Miriam, 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 Miriam 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 west half of the north-west quarter 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 northwest quarter of the southwest quarter 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 west half of the northwest quarter 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 west half of the northwest quarter 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 Henry 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 plaintiffs' 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-year 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 Miriam 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 twenty-one years of age.

Plaintiffs filed a reply to the answer which in effect denies all allegations as to the new matter therein contained.

Mrs Miriam 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 Miriam was allotted fifty-three 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 thirteen-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 forty acres, for the sum of seven hundred dollars, two hundred dollars of which was paid in cash, and to secure the remaining five hundred dollars of the purchase price Walls executed to Samuel Sperry...