Rice v. Shipley
| Decision Date | 25 January 1901 |
| Parties | RICE et al., Appellants, v. SHIPLEY et al |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.
Affirmed in part and reversed in part and remanded (with directions).
R. T Railey and T. N. Haynes for appellants.
(1) If the husband, John R. Shipley, received the money from his wife's inheritance under the laws of Pennsylvania, it was impressed with a trust and so remained in this State, and this is so irrespective of the husband's consent. State ex rel. v. Bank, 80 Mo. 626; Story's Eq Juris., secs. 1379-1382; Tillman v. Tillman, 50 Mo 40; Meyer v. McCabe, 73 Mo. 241; Grabill v. Moyer, 45 Pa. 533; Bergy's Appeal, 60 Pa. 408. (2) At common law, the husband did not acquire ownership of the wife's property by reducing it to possession, where it was shown it was not his intention to make it his own. And where it is shown that the husband by his acts and statements, held property and treated and considered it as the separate property of his wife, he is estopped from setting up any claim or denying the trust. Coughlin v. Ryan, 43 Mo. 99; Holthaus v. Hornbostle, 60 Mo. 439; McCoy v. Hyatt, 80 Mo. 130; Wood v. Hicks, 36 Mo. 326; Bowen v. McKean, 82 Mo. 594; Clark v. Clark, 86 Mo. 114; Shaw v. Shaw, 86 Mo. 594; Kinealy v. Macklin, 89 Mo. 433; Botts v. Gooch, 97 Mo. 88; White v. Clasby, 101 Mo. 162; Boynton v. Miller, 144 Mo. 681. (3) For the purpose of raising a resulting trust, the admissions of the party holding the legal title, that the consideration was paid by another, are admissible. Criddle v. Criddle, 21 Mo. 522; Cavin v. Smith, 21 Mo. 444; Morey v. Staley, 54 Mo. 419; Price v. Kane, 112 Mo. 412; Boggess v. Boggess, 127 Mo. 305; Boynton v. Miller, 144 Mo. 681; Tuggle v. Hughes (Tex.), 28 S.W. 61. (4) The burden is on the husband receiving a deed from his wife, to show that it is the result of her free will and consent after a full disclosure of all the facts and circumstances attending the transaction. Pomeroy's Eq. Juris., secs. 951, 956, 957; Story's Eq. Juris., secs. 218, 307, 308, 329; Cadwalader v. West, 48 Mo. 483; Ranken v. Patton, 65 Mo. 378; Bradshaw v. Yates, 67 Mo. 221; Street v. Goss, 62 Mo. 226; Garvin's Adm'r v. Williams, 44 Mo. 465; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Allore v. Jewell, 94 U.S. 506; Erhart v. Dietrich, 118 Mo. 418. (5) The evidence discloses the fact that this sixty-acre tract was in the name of Mrs. Louisa C. Shipley; as to who furnished the money with which it was purchased, the evidence is silent; but even if the purchase money had been furnished by the husband, by having the deed made to his wife, the presumption is that he intended it as a settlement on her, that he meant it as a gift, and the land was just as much her property as if it were purchased with her separate funds, and in considering this case it must be so considered. Street v. Goss, 62 Mo. 228; Bradshaw v. Yates, 67 Mo. 221; 2 Pomeroy's Equity (2 Ed.), sec. 1039; Perry on Trusts, secs. 143, 147; Story's Equity, sec. 1204; Siebold v. Chrisman, 75 Mo. 308; Schuster v. Schuster, 93 Mo. 438; Kinzey v. Kinzey, 115 Mo. 496; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Saunders v. Saunders, 144 Mo. 482; Schouler on Husband and Wife, secs. 217, 383, 385, and 387.
Burney & Burney and Noah M. Givan for respondents.
(1) The court can only grant such relief as is warranted by the allegations in the petition. Plaintiffs can not plead a contract or an express trust in the petition as a basis of recovery, and recover upon an implied or resulting trust not pleaded. The petition fails to state a cause of action. It claims under an express trust -- an express agreement, and no such written agreement as is required by statute is stated. Newman v. Kenton, 79 Mo. 382; McKnight v. Brady, 2 Mo. 110; Ross v. Ross, 81 Mo. 84; Muenks v. Bunch, 90 Mo. 500; Reid v. Bott, 100 Mo. 66; Bank v. Doran, 109 Mo. 52; Chitty v. Railroad, 148 Mo. 74. (2) Even if a resulting trust is properly pleaded, then the alleged declarations of Shipley, that his wife's money bought the land, and that it belonged to her, do not prove the facts, and is not sufficient to establish a trust. Johnson v. Quarrels, 46 Mo. 423; Woodford v. Stephens, 51 Mo. 447; Cornett v. Bartlesman, 61 Mo. 127; Modrell v. Biddle, 82 Mo. 36; Berry v. Hartsell, 91 Mo. 136; Ringo v. Richardson, 53 Mo. 394; Kennedy v. Kennedy, 57 Mo. 77; Shaw v. Shaw, 86 Mo. 598; Rodgers v. Rodgers, 87 Mo. 259; Philpot v. Penn, 91 Mo. 44; Allen v. Logan, 96 Mo. 601; Taylor v. Von Shraeder, 107 Mo. 226; Dailey v. Dailey, 125 Mo. 96; Faning v. Doan, 139 Mo. 412; Curd v. Brown, 148 Mo. 92; Roberts v. Walker, 101 Mo. 601; Adams v. Burns, 96 Mo. 363; King v. Isley, 116 Mo. 159; Bradley v. Bradley, 119 Mo. 61; Reid v. Painter, 129 Mo. 682; Price v. Kane, 112 Mo. 419; State to use v. Bank, 10 Mo.App. 487. (3) All the statements alleged to have been made by Shipley -- that the land belonged to his wife, were declarations which if competent would tend to prove an express trust which can not be done by parol. Green v. Cates, 73 Mo. 115; Price v. Kane, 112 Mo. 419; Hillman v. Allen, 145 Mo. 644. (4) In 1870, the common law in reference to the property of married women was in force in this State, by which the husband acquired an absolute right to all the money and personal property of the wife, except such as constitute her equitable separate estate. Walker v. Walker, 25 Mo. 376; Sloan v. Torrey, 78 Mo. 625; Alexander v. Lidick, 80 Mo. 341; Flesh v. Lindsay, 115 Mo. 13; Lete v. Bank, 115 Mo. 200. (5) Even if Mrs. Shipley owned any money in Pennsylvania, which by the statutes of that State was her statutory separate estate there, yet, when she and her husband changed their domicil to Missouri in 1870, if they brought her money with them, the rights of the husband to the same must be determined by the laws of the State at that time. Minor v. Cardwell, 37 Mo. 350; Meyer v. McCabe, 73 Mo. 236; Benne v. Schnecko, 100 Mo. 256; 3 Am. and Eng. Ency. of Law, 568, 570; Chapman v. Robertson, 6 Paige Chanc. 521. The statutory separate estate of the wife is not of the same character as her equitable separate estate. Bedsworth v. Bowman, 104 Mo. 44; Gwinn v. Smuirr, 101 Mo. 552.
OPINION
In Banc
In January, 1895, John R. Shipley died testate, seized of two contiguous tracts of land in Cass county, Missouri, one containing eighty and the other sixty acres, described in the petition. He had been twice married. The defendants are his second wife and widow, and her child, devisees of said real estate under the will, and the administrator cum testamento annexo of his estate. The plaintiffs are the heirs at law of Louise C. Shipley, the first wife of said testator, who died in November, 1887, intestate, being the children and their descendants of that marriage.
John R. and Louisa C. Shipley were married about the year 1850, in the State of Pennsylvania, and continued to reside there until the year 1870, when they moved with their four children, Emma, Virginia, Louisa and Albert, to Cass county, Missouri, where the said John R. Shipley purchased the eighty-acre tract of M. M. and Isaac Wagner, who by deed dated March 19, 1870, for the recited consideration of $ 2,960, conveyed said tract to him. Afterwards the said John R. purchased the sixty-acre tract of W. J. R. Bailey, who by warranty deeds, dated October 21, 1874, and March 26, 1877, conveyed the same to the said Louisa C. Shipley. Afterwards by deed dated January 21, 1887, the said Louisa C. and John R. Shipley conveyed the sixty-acre tract to Frank L. Rice, who by deed dated January 22, 1887, conveyed the same to the said John R. Shipley.
On the fifth of March, 1895, the plaintiffs instituted this suit. The petition is in two counts. The gravamen of the charge in the first count, is "that the eighty-acre tract was purchased by the said John R. Shipley with the money of his wife, the said Louisa C. which was her separate estate, and the deed taken in his own name in trust for her," and the prayer is, that defendants be divested of whatever title they may have as devisees or heirs at law of the said John R. Shipley, deceased, in that tract, and that the title thereof be vested in plaintiffs.
The charge in the second count is that the deeds from the said Louisa and husband to Rice, and from Rice to the said John R. Shipley to the sixty-acre tract, were without consideration, and were made for the purpose of vesting the title in him in trust for the benefit of the children of the said Louisa C., born of her marriage with the said John R., and that she was induced to execute the deed by the persuasions and promises of her husband at a time when she was in such a condition of body and mind as to be incapable of transacting any business whatever; wherefore she prays like relief as in the first count, as to that tract.
Issue was joined by answer on both counts, and on the trial, the court found the issues on the first count for the defendants and on the second count for the plaintiffs. To the action of the court in finding for the defendants on the first count, the plaintiffs excepted and in due time filed their motion for a rehearing and for judgment in their favor on the first count, which motion being overruled, they duly excepted. To the action of the court in finding for the plaintiffs on the second count, the defendants excepted, and in due time filed their motions for new trial and in arrest of judgment, which motions were sustained by the court "on the ground that the finding and judgment of the court as to the second count is contrary to the evidence." To this action of ...
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