Ryan v. Ford

• Decision Date: 05 December 1910
• Citation: 151 Mo. App. 689,132 S.W. 610
• Parties: RYAN v. FORD.
• Court: Missouri Court of Appeals

132 S.W. 610

151 Mo. App. 689

RYAN v. FORD.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. LIMITATION OF ACTIONS (§ 82)—DEATH OF PERSON ENTITLED TO SUE—ACTION BY ADMINISTRATOR.

Where a husband during his wife's life made no adverse claim to a note made payable to both, and after her death retained it during his own lifetime, under an agreement with her that he should collect the interest thereon until his death, Rev. St. 1899, § 4279 (Ann. St. 1906, p. 2354), permitting the executor or administrator of one dying before the expiration of the time limited for the commencement of a suit which he is entitled to institute, if the cause of action survive to such representative, to commence such action after the expiration of the time limited and within one year after such person's death, did not apply to bar an action by the wife's administrator against the husband's executor to recover the proceeds of such note collected by the latter.

2. TRUSTS (§ 94)—CONSTRUCTIVE TRUST— FAILURE TO DELIVER DEED.

Where, pursuant to an understanding between the legal owner of land and his wife, who furnished the purchase money, and another, the husband and wife conveyed the land to such other, who, pursuant to such understanding, executed and acknowledged a quitclaim deed back to the wife, the latter became the equitable owner of the land, though the quitclaim deed was

never delivered to her; such other merely holding the land in trust for her benefit.

3. HUSBAND AND WIFE (§ 14)—ESTATE BY ENTIRETY.

There may be an estate by entirety in personal property, and, as between husband and wife, the instrument creating such estate need not state that it does so.

4. HUSBAND AND WIFE (§ 14)—PROPERTY— JOINT OWNERSHIP—ESTATE BY ENTIRETY.

Where a promissory note is made payable to husband and wife, they are prima facie equal owners thereof, though it may be shown that one of them is the real owner and entitled to the proceeds.

5. APPEAL AND ERROR (§ 1009)—FINDINGS— CONCLUSIVENESS—EQUITY CASES.

An appellate court is not bound by the trial court's findings in equity cases, as it is in suits at law.

6. EXECUTORS AND ADMINISTRATORS (§ 450)— ACTIONS—SUFFICIENCY OF EVIDENCE.

In an action by a wife's administrator against the husband's executor to recover the proceeds of purchase-money notes payable to the husband and wife and given for land purchased in the husband's name with the wife's money, evidence held to sustain a finding that they agreed that the survivor of them should have the interest on the note until his death, when it or its proceeds should go to the wife's daughter.

Appeal from Circuit Court, Cedar County; B. G. Thurman, Judge.

Action by C. P. Ryan, administrator of the estate of Susan Naudain, against J. R. Ford, executor of the estate of James S. Naudain. From a judgment for plaintiff, defendant appeals. Affirmed.

R. N. Banister, for appellant. Lee B. Ewing, J. R. Moss, and Foulke & Brown, for respondent.

GRAY, J.

This is a suit by the administrator of the estate of Susan Naudain against J. R. Ford, the executor of the estate of James S. Naudain, to recover the proceeds of a promissory note for $1,600. The note was dated October 6, 1903, due five years from date, and payable to James S. Naudain and Susan Naudain. The payees were husband and wife. Susan Naudain died intestate in March, 1907, and James S. Naudain died testate in August of the same year. They were married in Illinois about the year 1878. Mrs. Naudain, prior to her marriage, was the widow of Barnabas Collier, who died in Illinois. There was born of the marriage with Collier one child, now Mary Dalton. Naudain had no children at the time he married Susan Collier, and no child was born of that marriage, and Mary Dalton is the sole descendent of her mother, and is now the wife of T. J. Dalton. At the time of the marriage of James and Susan, the latter owned or had an interest in about 90 acres of land in Montgomery county, Ill. This property came to her from her former husband, and the evidence shows from it she realized certain sums of money. At the time of the marriage, James owned a team, some farm implements, and claimed some interest in 50 acres of land; but he was considerably in debt. In 1880 James came to Missouri, leaving his wife and stepdaughter in Illinois. At the time he left Illinois, he had nothing but an ordinary team and wagon, and when he reached Vernon county, Mo., the evidence does not show he had that property. In 1880 he bought 80 acres of land in Vernon county at an agreed price of $280. He took the title in his own name, but soon after wrote to Illinois to his wife for money to pay on the land. In the spring of 1882, Mrs. Naudain and her daughter came to Vernon county, and the family lived for several years on the 80-acre tract, and until it was sold in 1903, except for a period of about three years, during which time James was in Oklahoma. The evidence shows that, at different times when he lived on the land, Naudain made statements that his wife had paid for the land, and it was hers; "that her money had helped him out in paying for the land." The evidence further shows, when the county assessor called for the assessment of his property, James referred him to his wife, for the reason that the land belonged to her. In 1890, under a prior understanding and agreement, Naudain and wife made, acknowledged, and executed a deed to the land to William C. Newberry, and sent the same to Newberry at Irving, Ill. The deed was received by Newberry, and, in carrying out the understanding to that effect, he and his wife made, executed, and acknowledged a quitclaim to the land to Susan Naudain. The evidence does not show that the deed to Susan was ever delivered, only that it was deposited in the post office, directed to James Naudain. But the evidence does show that the deed to Newberry was made and delivered in pursuance to an arrangement made by James S. Naudain with Mr. Newberry while the latter was visiting Naudain at his home in 1889, and for the express purpose of putting the legal title in Mrs. Naudain. In 1903 the land was sold to the said T. J. Dalton for the price of $3,000, subject to a deed of trust for $750. The balance of the purchase money, except $300 in cash, was evidenced by three promissory notes, one for $150, one for $200, and one for $1,600, each payable to James S. Naudain and Susan Naudain. The first two...