Robbins v. Robbins
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 502,258 Mo. 175 |
| Parties | STELLA F. ROBBINS v. JOHN B. ROBBINS, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.
Affirmed.
Bruce Barnett for plaintiff in error.
(1) The plaintiff must establish beyond reasonable doubt the facts necessary to constitute a resulting trust. Reed v Sperry, 193 Mo. 173; Brinkman v. Sunken, 174 Mo. 715; Burdette v. May, 100 Mo. 16. That plaintiff has not established beyond a reasonable doubt and that she has not established by the preponderance of the evidence and that she has brought forth no evidence whatsoever of a direct nature that any of her earnings were invested in the real estate cannot be controverted. We call attention to the language of the decree in which the court recites that it cannot be determined what amount of money plaintiff invested in the real estate, and we submit that a reading of the evidence will show that it cannot be determined that a single dollar of her money ever went into real estate. (2) The only definite statement by plaintiff of money paid by her is that she paid her husband's $ 200 note to Mason, but this was after the title to the property was acquired, and therefore no trust resulted on that account. Weiss v Heitkamp, 127 Mo. 31. (3) There can be no advantage to plaintiff by reason of any intermingling of funds. The disadvantage falls upon the one who is responsible for the intermingling, and not upon the other party. Mrs. Robbins testifies that she herself deposited her earnings with Mason taking receipt or due bill therefor in her husband's name, knowing that her husband also deposited his savings with Mason. Therefore, Mrs. Robbins cannot claim all because a part was hers and intermingled. If both were responsible for the intermingling equity will leave the parties as it finds them.
C. W. Owsley for defendant in error; J. H. Bremmerman of counsel.
(1) Where land is purchased by one in his own name with the money of another, a resulting trust is created by implication of law which follows the ownership of the money. Baumgardner v. Guessfeld, 38 Mo. 36; Alekire Gro. Co. v. Ballinger, 137 Mo. 369; Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 577; Stevenson v. Smith, 189 Mo. 466. The same doctrine pertains where the trustee is the husband and the wife supplies the money. Perry on Trusts (5 Ed.), sec. 127; Broughton v. Brand, 94 Mo. 169; Bowan v. McKean, 82 Mo. 594. (2) If only part of the purchase money is paid by a third person a trust results pro tanto. Perry on Trusts (5 Ed.), sec. 126; Pomeroy's Equity Jurisprudence (3 Ed.), sec. 1038; Bowman v. McKean, 82 Mo. 598; Shaw v. Shaw, 86 Mo. 594; In re Ferguson Estate, 124 Mo. 574; Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 536; Johnston v. Johnston, 173 Mo. 118; Donovan v. Griffith, 215 Mo. 167. (3) The remedy being drastic the law has wisely provided that to establish a resulting trust, the proof must be clear, strong, cogent and unequivocal, but it is nowhere held that when the trust is so established, this rigid requirement applies to proof as to the exact amount of the purchase money furnished. It is nowhere held that where a trust is established and a party is unable to show that just so many dollars, no more no less, of his money, was paid for a property in question he must fail. That would be monstrous and this court has never adopted that principle. Crawford v. Jones, 163 Mo. 577. (4) It was nowhere claimed or attempted to be shown that the money of the plaintiff was, at any time, reduced to the possession of defendant by consent of plaintiff in writing and under the law it remained her separate property. R. S. 1909, sec. 1809. (5) Where two contribute to the fund and the conveyance is taken in the name of one the presumption is that the proportions were equal. Shoemaker v. Smith, 11 Humph. 88. Any undue advantage by the use of the marital relation is a legal fraud on the wife, which courts of equity will not allow to stand to her prejudice. Wilbeck v. Wilbeck, 25 Mich. 438; Jennie v. Marble, 37 Mich. 322.
Action to establish resulting trust in real estate. From a judgment for plaintiff in the circuit court of Jackson county defendant prosecutes his writ of error to this court.
It is alleged in plaintiff's petition that she and defendant were husband and wife from July 27, 1887, to July 16, 1906, a period of nineteen years, at the end of which time they were divorced. That neither of them possessed any property of consequence at the time of their marriage, nor did they accumulate anything until about the year 1889, when they located in Kansas City, Missouri, and the plaintiff began teaching school, and defendant working for a street car company. Plaintiff alleges that her earnings as a teacher were applied upon the purchase of a town lot in Kansas City, Missouri, the title to which lot was taken in the name of defendant and by him held in trust for her. Wherefore, she prayed that the title to said town lot be divested out of defendant and invested in plaintiff.
The answer was a general denial.
The evidence is quite clear that neither party owned any property of consequence prior to 1889. Each party claims to have earned and furnished the money which paid for the lot in controversy.
The official records of the school district of Kansas City show that plaintiff taught in the public schools of that city during nine months of each year for fourteen consecutive years, beginning in 1889, at $ 50 per month, and ending in 1904, at $ 70 per month. Her aggregate earnings during that period as a teacher in the public schools were $ 7,245.
During the same period of time her husband (defendant) worked, first, there years and seven months for a street car company. He estimates his average wages during that time at $ 60 per month, out of which he says he was able to save something after paying the ordinary expenses of himself and wife. The remainder of the time, while plaintiff was teaching, he operated a two-chair barber shop of his own, and testifies that his net earnings from said barber shop were $ 100 per month. He kept no books.
The plaintiff testified that she taught music and other private classes when the public schools were not open, whereby she earned some additional money. The defendant testifies that he traded some in real estate and horses whereby he picked up a few hundred dollars on the side.
In the year 1893 the town lot in controversy was purchased for $ 680. Plaintiff testified that she had deposited her earnings as a teacher in the Kansas City Safe Deposit Bank until such deposits aggregated about $ 800; that enough of her earnings were withdrawn from the bank to pay for the lot and leave a balance in the bank of $ 121. The total price of the lot was not paid at the time of its purchase. There was a $ 400 mortgage on it, which was paid subsequently; but both parties claimed that the entire cost of the lot was paid out of the funds deposited in the bank before mentioned. Plaintiff was not entirely sure that all the money which went into the bank was hers. On cross-examination her evidence runs as follows:
Plaintiff further testified that the bank failed about two months after they finished paying for the lot. On this point she said:
The defendant, testifying in regard to this particular item, stated that the lot in controversy was paid for out of money deposited in the Kansas City Safe Deposit Bank, but that it was all his money -- that none of it was earned by plaintiff. He, however, corroborated the plaintiff as to the failure of the bank, saying: "It failed and got us for a hundred and something."
After bank failures became so frequent in 1893 plaintiff and defendant declined to put their surplus earnings into banks. Plaintiff says she kept most of hers in a chamois bag until about the year 1903, when, having accumulated about $ 1100, she gave it to defendant to pay off an encumbrance created to place a house on the lot before mentioned. Defendant admits this $ 1100 expenditure about the year 1903, but claims that it was his own earnings which he had kept "about the house" after the bank failure. On cross-examination defendant said:
Defendant also testified that there is on the lot in controversy a brick house which cost $ 1900, and a frame house which he bought and moved onto it, the cost of which seems to have been about four or five hundred dollars; making the total cost of the lot about $ 3,000. Some expenses were incurred for special taxbills, but these were probably offset by rents collected.
Plaintiff testified that several years after the bank failure she and defendant deposited some of their earnings with a druggist by the name of Mason; that such deposits were usually made in the name of her husband. Defendant says that when plaintiff deposited any money with Mason she always did so in her own name. Mason, the druggist, was sworn, but he kept no books -- issued only due bills to the parties when they deposited with him. In so far as his evidence has...
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