Stevens v. Fitzpatrick

• Decision Date: 31 March 1909
• Citation: 218 Mo. 708,118 S.W. 51
• Parties: STEVENS et al. v. FITZPATRICK et al.
• Court: Missouri Supreme Court

118 S.W. 51

218 Mo. 708

STEVENS et al. v. FITZPATRICK et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. JUDGMENT (§ 122) — DEFAULT — ENTRY — NECESSITY OF REQUEST.

If there was no reply to a cross-bill, so that defendants were entitled to have it taken as confessed, they should have asked for entry of a default.

2. QUIETING TITLE (§ 39)—DEFENSES—PLEADING.

In an action to quiet title, an allegation in a cross-bill that the land belonged to W. at his death and descended to his heirs, and that defendant was a bona fide purchaser from another without notice of adverse claims, would not support a judgment for defendant, she not having connected her grantor with W.'s title or alleged a valuable consideration paid by her to her grantor.

3. PLEADING (§ 79)—ANSWER—CONTENTS.

Under Rev. St. 1899, § 604 (Ann. St. 1906, p. 631), requiring the answer to contain a general or specific denial and a statement of any new matter constituting a defense or counterclaim, defendant is entitled to but one answer, which must contain all his matter of defense and counterclaim.

4. QUIETING TITLE (§ 40) — PLEADING — REPLY.

In an action to quiet title, the answer denied that the petition stated facts sufficient to divest defendant's title to land theretofore conveyed to her by D., and plaintiff replied by a general denial, and thereafter defendant filed a cross-bill alleging her purchase from D., and the trial was had as if all the issues were joined. Held, that the reply was properly treated as answering the cross-bill.

5. VENDOR AND PURCHASER (§ 235)—BONA FIDE PURCHASER — CONSIDERATION—NECESSITY.

Payment of consideration is essential to entitle one to protection as a bona fide purchaser.

6. QUIETING TITLE (§ 52)—JUDGMENT—REQUISITES— CONFORMITY TO PLEADING.

Where, in an action to quiet title, defendant's cross-bill was insufficient to support a recovery and was not supported by evidence, and its averments were covered by the general findings for plaintiff, there was no error in not mentioning it in final decree.

7. PARTIES (§ 6)—REAL PARTIES IN INTEREST —ACTIONS FOR LAND.

Plaintiff was the real party in interest so as to entitle her to bring an action to quiet title to land which her husband had contracted, during his lifetime, to sell to another, and for which part of the consideration was paid, though the sale was never consummated; she being interested in the payment of the balance of the purchase money, as well as in the complete performance of the contract of sale.

8. ACTION (§ 48) — JOINDER OF ACTIONS — SAME TRANSACTION.

A count alleged that plaintiff's husband purchased and paid for land, but that title was taken in the name of his father, under whom defendants claim, and that thereafter the father executed a deed to plaintiff's husband, which was lost; and the second count, in addition to those facts, alleged a contract of sale of the land by plaintiff's husband to defendant corporation, and prayed that the lost deed be restored and title adjudged in plaintiff. Held that, if the counts stated two causes of action, they arose out of the same transaction, and hence were properly joined under Rev. St. 1899, § 593 (Ann. St. 1906, p. 619).

9. PARTIES (§ 92)—DEFENDANTS—MISJOINDER —MODE OF OBJECTION.

An objection to two counts for misjoinder of defendants should be made by special demurrer, as authorized by Rev. St. 1899, § 598 (Ann. St. 1906, p. 624), and not by motion to elect on which count plaintiff would stand.

10. QUIETING TITLE (§ 30) — PARTIES — DEFENDANTS —JOINDER.

In an action to quiet title and restore a lost deed to land claimed to have been purchased and paid for by plaintiff's husband, and deeded to his father, through whom defendants claim, and to have been thereafter deeded to plaintiff's husband by an unrecorded lost deed, a corporation to which her husband had contracted to sell the land was properly joined as a defendant, it being interested in the subject-matter of the action and being willing to consummate its contract to purchase.

11. TRUSTS (§ 1)—"EXPRESS TRUSTS."

Express trusts arise by agreement between the parties expressing the particular trust intended.

12. TRUSTS (§ 62)—"IMPLIED TRUSTS"—NATURE.

Implied trusts arise by an implied agreement between the parties as to the trust intended.

13. TRUSTS (§ 62)—"RESULTING TRUSTS"— NATURE.

Resulting trusts do not depend upon an agreement between the parties, but arise by operation of law from their acts; the law implying a trust where honesty and fair dealing require that the property be considered as held in trust, as where the purchase money is paid by one person and title taken in the name of another.

14. TRUSTS (§ 81)—RESULTING TRUSTS—PAYMENT OF CONSIDERATION FOR CONVEYANCE BY ANOTHER.

Where one purchased and paid for land, but, for convenience, had it conveyed to his father, the latter held the land in trust for his son.

15. TRUSTS (§ 88)—RESULTING TRUST—EVIDENCE TO ESTABLISH—PAROL EVIDENCE.

The death of one in whose name title is taken to land purchased and paid for by another does not prevent the latter from showing by parol the trust relationship.

16. TRUSTS (§ 89)—RESULTING TRUSTS—EVIDENCE TO ESTABLISH—WEIGHT—PAYMENT.

The death of the one in whose name title was taken to land purchased and paid for by another makes it necessary for the court to use greater care in weighing the evidence of the trust relation.

17. LOST INSTRUMENTS (§ 7)—RESTORATION— PLEADING—DELIVERY.

In an action to restore a lost deed and quiet title in plaintiff, etc., it was sufficient to allege that defendant executed and delivered the alleged lost deed to plaintiff, since to specify the manner and form of the delivery, whether made by defendant personally or through another, would be to plead evidence.

18. QUIETING TITLE (§ 44)—PROCEEDINGS— EVIDENCE.

In an action to quiet title in plaintiff to land claimed to have been purchased and paid for by her husband, and title taken in the name of defendant's ancestor for convenience, proof of facts showing the resulting trust, and that plaintiff's husband had been in possession for 21 years, was sufficient, without showing that plaintiff was in possession when the action was begun.

19. VENDOR AND PURCHASER (§ 191)—THE RELATION—PURCHASER'S POSSESSION.

Where a corporation was in possession of land under a contract of sale from plaintiff's husband, its possession was that of his heirs and devisees.

20. TRUSTS (§ 89)—RESULTING TRUSTS—EVIDENCE TO ESTABLISH—SUFFICIENCY.

In order to enforce a resulting trust in land which plaintiff claimed to have purchased and paid for, title to which was taken in another's name, plaintiff must prove his case by a high standard of evidence.

21. LOST INSTRUMENTS (§ 8)—RESTORATION— SUFFICIENCY OF EVIDENCE.

One seeking to restore an alleged lost deed must prove his case by a high standard of proof.

22. TRUSTS (§ 89)—RESULTING TRUSTS—ENFORCEMENT —SUFFICIENCY OF EVIDENCE.

In a suit to quiet title and enforce a trust in land claimed to have been purchased and paid for by plaintiff's husband, but for convenience deeded to his father, through whom defendants claimed, evidence held to show beyond a reasonable doubt the purchase and conveyance of the land in the manner alleged.

23. LOST INSTRUMENTS (§ 8)—PROCEEDINGS— SUFFICIENCY OF EVIDENCE.

In an action to restore a lost deed, claimed to have been executed by defendants' ancestor to plaintiff's husband, to land which the former held in trust for the latter, evidence held to prove plaintiff's case beyond a reasonable doubt.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Ellen S. Stevens and others against Fannie D. Stevens, O. H. Stevens, and another. From a judgment for plaintiff, the defendants named appeal. Affirmed.

Scarritt, Scarritt & Jones, for appellants. Frank Titus, for appellees.

VALLIANT, J.

This suit involves the title to about 17 acres of land in Clay county, just across the river from Kansas City, being E. ½, S. W. ¼, N. W. ¼, Sec. 23, T. 50, R. 33. According to the petition, the land was purchased in 1881 by Edward A. Stevens and paid for by him, but at his request and for his convenience the title was taken in the name of his father, William Stevens. William Stevens died in 1896; Edward died in 1902. The plaintiff Ellen is the widow of Edward, the executrix of his will and his devisee; the other plaintiffs are his heirs; the defendants (except, of course, the North Kansas City Development Company, a corporation) are heirs of William. The plaintiffs, other than Ellen, are also heirs of William. Edward in his lifetime made a contract of sale of the land to the defendant corporation, the development company, and part of the consideration was paid, but he died before the sale was consummated. The main question in the case is, did the land belong to Edward or to his father, William?

The petition is in two counts. The first is under section 650, to adjudge and quiet title; the second is in equity, to restore an alleged lost deed from William to Edward. In the first count, in addition to the allegations that the land was bought and paid for by Edward and the title taken for convenience in the name of his father, William, it is alleged that afterwards William and his wife made and executed a deed, duly acknowledged, conveying the land to Edward, but that that deed was never recorded and is now lost; also that Edward in his lifetime, and the plaintiff Ellen since his death, have been in adverse possession of the land for more than 10 years. The second count contained substantially the same averments as the first, with the addition of the statement of the contract of sale to the defendant corporation, with a prayer to have the lost deed restored and the defendants divested of their apparent record title and the plaintiff Ellen invested with title.

Defendants O. H. Stevens and Fannie Stevens, his wife, who are the appellants in this court, filed their answer, in which the...