Sharp v. Berry

• Decision Date: 31 May 1875
• Citation: 60 Mo. 575
• Parties: JONATHAN SHARP, et al., Respondents, v. CHLOE BERRY, et al., Appellants.
• Court: Missouri Supreme Court

60 Mo. 575

JONATHAN SHARP, et al., Respondents,

v.CHLOE BERRY, et al., Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Livingston Circuit Court.

C. A. DeLieuw, with J. D. Strong, for Appellants, cited Forester vs. Scoville, 51 Mo., 238; Johnson vs. Quarles, 46 Mo., 423; Lead. Cas. Eq., Hare & Wal. Notes, pp. 272, 276, 280, 283; Hill Tr. pp. 148, 149, 151; Sugd. Vend., pp. 391, 395, of vol. 11; Spoor vs. Wells, 3 Barb. Ch. 99 and 194; 1 Hoffm. Chy., 97; 10 Paige Chy., 182.

H. M. Pollard, for Respondents.

When Berry bought these lots with his and Sharp's money and took the conveyance in his own name, he held the undivided half in trust for Sharp. (1 Perry Tr., § 126; Payne vs. Chouteau, 14 Mo., 580; Valle vs. Bryan, 19 Mo., 423; Rankin vs. Harper, 23 Mo., 579; Baumgartner vs. Guessfeld, 38 Mo., 36; Hill Tr., 92 and notes; Jackson vs. Sternberg, 1 John. Cas., 153.)

A resulting or implied trust may be proved by parol, even against the face of the deed, or the sworn answer of the trustee, and it need not be in writing. (Boyd vs. McLeod, 1 John. Ch., 245; Johnson vs. Quarles, 46 Mo., 423; Fausley vs. Jones, 7 Ind., 277; 1 Perry Tr., §§ 137-8, and cases there cited; Faris vs. Dunn, 7 Bugh., 276; Caldwell vs. Caldwell, 7 Bugh., 515; Letcher vs. Letcher, 4 I. I. Wranch, 590; Larkins vs. Rhodes, 5 Post [Ind.], 196; Larkins vs. Rhodes, 23 Ind., 157.)

NAPTON, Judge, delivered the opinion of the court.

The plaintiffs are heirs of Martin Sharp, and the defendants the heirs of Benj. Berry. The suit was brought in 1871.

The petition alleges that Sharp died in January, 1871, and Berry died in 1865; that Berry, on the 5th of November, 1856, by a purchase at sheriff's sale and by deed from said sheriff to himself, acquired the legal title to lots 6 and 7 in Block 51 in the town of Chillicothe, Livingston county, which deed is duly recorded; that at the time said deed was made, Martin Sharp furnished said Berry one-half of the purchase money, upon the understanding that said deed was to be made to said Berry & Sharp jointly; that said deed was to Berry, solely, through mistake or omission of said Berry; that said mistake or omission was not discovered till after the death of Berry.

It is further alleged, that said Berry also acquired the sole title to lot 3, block 51, by deed from Abithal Wallace, Adm'r of one Bell, dated 13th May, 1857, and by subsequent deed from Abel Love and wife, dated July 3d, 1859, both duly recorded, and said Sharp furnished one-half of the purchase money for this lot, and that the deed to Berry was by mistake or omission.

The petition therefore asks that the defendants, heirs of Berry, be divested of title to the undivided half of these lots, and that the same be vested in plaintiffs the heirs of Sharp.

The answer simply denies these allegations.

After hearing the testimony, the Circuit Court entered a judgment in favor of the plaintiffs. The testimony is preserved in the bill of exceptions, and the propriety of the decree based on it is the only question we are called upon to review.

It would serve no useful purpose to recite the evidence at large, which is voluminous, and is chiefly made up of statements made to the witnesses by the original parties, long since dead, and which of course presents great contradictions. It may be observed, however, that the witnesses seem to be candid and truthful and, no doubt, correctly state the facts they testify to. The difficulty is in the interpretation of the facts.

Some of the facts, however, are clear and beyond controversy. Sharp was the father-in-law of Berry, and they both moved from Illinois to Chillicothe in 1865, and lived in the same house, and Sharp being about 70 years old and Berry somewhat younger, though in bad health, managed the pecuniary affairs of Sharp as well as his own. Mrs. Berry, a material witness for plaintiffs, who was the daughter of Sharp, testifies to this. That Sharp and Berry bought some lots and other land adjoining Chillicothe in common, is conceded, and that Berry owned a lot, and perhaps other land distinct from any interest of Sharp, is conceded.

The testimony of Mrs. Berry is very clear and exact. She states that a few weeks before the death of her husband, he called her attention and that of her sister and father to the fact that all the lots he (Berry) had purchased in Chillicothe, except one (naming it) had been bought in conjunction with her father, and that he furnished half of the money to buy them.

Her sister, Charlotte, is equally confident. She was 59 years old, and states that she had charge of her father's money, and that he came to her after the purchase of said lots and called for his money and counted it, and paid one-half to Berry. She does not say, however, that the money was used to pay for the lots in dispute--a matter, which only tends to confirm the truth of what she does state.

The evidence seems to be about...