Smith v. Smith

• Decision Date: 05 March 1907
• Parties: SMITH v. SMITH et al.
• Court: Missouri Supreme Court

100 S.W. 579

201 Mo. 533

SMITH v. SMITH et al.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. PLEADING—DEFECTS—GENERALITY OF ALLEGATIONS —CURE BY JUDGMENT.

Where no objection was made in the trial court to the petition in an action to have title acquired by plaintiff's husband through deeds decreed to be held in trust for plaintiff, which petition alleged, as a preliminary to the allegations of fact constituting the trust, that the grantors undertook to convey to plaintiff's husband such lands in trust for plaintiff, to whom they belonged, but by mistake, accident, and oversight the clause necessary to create the trust was unintentionally omitted, though the deeds were received and accepted by plaintiff's husband with such understanding and intent, the defect as to the generality of the allegations as to mistake, accident, and oversight was cured by the judgment.

2. TRUSTS—ACTIONS TO ESTABLISH—LIMITATIONS — ADVERSE POSSESSION — HUSBAND AND WIFE.

An action by a wife to have certain deeds in which her husband was grantee decreed to be held in trust for her was not barred by limitations because of the husband's possession thereunder for a period exceeding the statutory period, where his possession was taken prior to the statute restricting the common-law rights of the husband in lands of the wife, since such possession was not adverse, as seisin and possession of lands belonging to the wife were before such time transferred to the husband by the marriage.

3. WITNESSES — COMPETENCY — TRANSACTIONS WITH PERSONS SINCE DECEASED—DEEDS.

Under Rev. St. 1899, § 4652 [Ann. St. 1906, p. 2520], providing that, where one of the original parties to a contract or cause of action in issue is dead, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, the grantors in certain deeds were incompetent to testify after the grantee's death that such deeds were not made to the grantee personally, but merely as trustee for his wife.

4. TRUSTS—RESULTING TRUSTS—ESTABLISHMENT —EVIDENCE—SUFFICIENCY.

In order to prove a resulting trust, it must be established by testimony so clear, strong, and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust.

5. SAME.

Where the title to land conveyed to the husband of plaintiff, in an action to have the deeds thereto decreed to be held in trust for the wife, remained in the husband for 37 years before his death, a resulting trust in plaintiff's favor was not established by evidence as to declarations made by the husband upon only two occasions during the entire time, to the effect that the property belonged to his wife, and that he held it in trust for her.

Appeal from Circuit Court, Mississippi County; Henry C. Riley, Judge.

Action by Elizabeth A. Smith against James W. Smith and others. From a judgment for plaintiff, defendants appeal. Reversed.

Russell & Deal, for appellants. Boone & Lee, for respondent.

BURGESS, J.

In 1857 Charles Moore died intestate, owning the land involved in this litigation and other land and personal property. He left surviving him seven children, namely, Eliza J. Goddard, Elizabeth A. Smith, this plaintiff, Nancy Parrot and Susan A. Swank, daughters, and Charles C. Moore, Joseph H. Moore, and Benjamin J. Moore, sons, his only heirs at law. In 1864 Benj. J. Moore died, and Joseph C. Moore was duly appointed his administrator, and qualified as such. Prior to the 6th day of April, 1866, the plaintiff, Elizabeth A. Smith, was united in marriage to James Smith, and remained his wife until his death in 1902. Said James Smith was the father of the defendants, James W. Smith, Silas S. Smith, and Elizabeth Bridwell, and the grandfather of Henry E. Sherman, who is the only heir of Sarah, deceased, a daughter of James Smith, also the grandfather of Ida Ross, wife of Emil E. Ross, and Mattie Deal, wife of E. J. Deal; the said Ida Ross and Mattie Deal being the only surviving heirs of Ellen, a daughter of James Smith.

The petition alleges: "That on the 6th of April, 1866, the then surviving children of Charles Moore, tenants in common, owning the real estate left by said Charles Moore, by mutual consent and agreement, made division and partition of the lands so derived and so owned as tenants in common, setting apart to each lands of the estimated value of $1,400. That, thereunder, there was set apart to Elizabeth Smith the following parcels of land in Mississippi county, Mo., namely: The S. E. ¼ of the S. W. ¼ of section 2 and the N. ½ of the N. W. ¼ of section 11, township 26, range 16, also the S. W. ¼ of section 15, township 26, range 17, in Mississippi county, Mo., and there was also set aside to each of the other heirs and children, lands of an equal value, and, on said dates, deeds were executed, signed by all the heirs, as grantors to each of said heirs as grantees, giving effect to, carrying out, and conveying the lands as per agreement, and on said 6th of April, 1866, to carry out said agreement of partition, Joseph H. Moore and wife, Anne, Nancy M. Parrot and husband, Beverly, Charles C. Moore and wife, Joan, Susan A. Swank and husband, A. V., and Ellen J. Goddard, by their deed of that date, undertook to convey to James Smith the above-described lands in trust for his wife, Elizabeth, to whom they then belonged, but by mistake, accident, and oversight the clause necessary to create the trust was unintentionally omitted in said deed, though said deed was received and accepted by said James Smith with such understanding and intent. That while the sum of $1,400 is recited in said deed as a consideration for said conveyance of land, yet, in truth and fact, no money was passed, given, or received therefor; but the sole consideration upon which said conveyance of lands was based was the agreement of division and the conveyance of other lands of like and equal value in which the said Elizabeth had a one-seventh interest, and that said lands and said conveyance were accepted by said James Smith as a trustee for the use and benefit of his wife, Elizabeth, who in after life so treated it. She further states that, during the life of said Smith, he and the plaintiff sold and conveyed the lands in section 2 and section 11, and that the lands in 15 is all that is left of said trust property. She further states that, in 1868, Joseph C. Moore, administrator of B. J. Moore, conveyed the one-seventh interest of said land held as tenant in common by B. J. Moore to Smith. That the consideration paid therefor was paid out of moneys arising from the sale of plaintiff's land, and that said Smith took said conveyance in trust for his said wife, and that, through mistake and accident, a trust clause in said deed was omitted, and that after that, on April 28, 1871, Althea, the widow of B. J. Moore, then the wife of Fields, conveyed her dower right, derived from B. J. Moore, to said Smith; but he also took said conveyance in trust for his said wife, and through mistake and accident the trust clause was omitted in said deed, but that said Smith always regarded and treated the property as hers. That said land is of right, and in equity is the plaintiff's property. That said Smith died without will, and that under the laws a large real estate owned by him in his own right descended to his heirs subject only to the widow's dower. That Henry E. Sherman and Ida Ross and Emil E. Ross are nonresidents of this state, so that the ordinary process of law cannot be served on them. That Silas S. Smith is a resident of St. Francois county, Mo. The other defendants are residents of this county. Wherefore, she prays that the title so acquired by James Smith to the S. W. ¼ of section 15, township 26, range 17, in Mississippi county, Mo., under the several deeds mentioned, be decreed to be held in trust for the plaintiff, and that the title thereto be divested out of defendants and invested in the plaintiff by the proper orders and decrees of this court, and for general equitable relief, and for costs."

The answer of the defendants is as follows: "Now come the defendants, and for their answer herein they admit that in the year 1857 Charles Moore died in Scott county, Mo., intestate; and that he left lands situate in Scott and Mississippi counties, which, under the laws of descents and distribution, descended and became vested in his children and heirs, as tenants in common; and that the children and heirs to whom the land descended were Eliza J. Goddard, Elizabeth A. Smith, Nancy Parrot, Charles C. Moore, Susan A. Swank, Joseph H. Moore, and Benjamin J. Moore; and that on April 6, 1866, and long prior thereto, Elizabeth Smith was married to James Smith and remained his wife until 1902, at which time he died; that he is the father of the defendants, James W. Smith, Silas S. Smith, Elizabeth Bridwell, and the grandfather of Henry E. Sherman, Ida Ross, and Mattie Deal; and that said James Smith died intestate; and that his real estate descended to his said heirs subject only to the widow's dower. Defendants further answer denying each and every allegation in the plaintiff's petition contained, except those above expressly admitted, and ask judgment for costs."

The court found the issues for the plaintiff, and rendered the following judgment: "It is therefore ordered, considered, adjudged, and decreed that the land, the S. W. ¼ of section 15, township 26, range 17, in Mississippi county, Mo., acquired by said Smith through the several deeds above mentioned, viz., the deed of April 6, 1866, from Joseph H. Moore et al. to Smith, the deed of 1868 from Ben. J. Moore by administrator to James Smith, the deed of April 28, 1871, from Althea Fields to James Smith, be and the same is deemed to have been taken and held in trust for Elizabeth Smith, and that all right, title, interest, and estate therein accruing to said...