Thierry v. Thierry

• Decision Date: 06 April 1923
• Parties: CHARLES W. THIERRY v. CHARLES W. THIERRY, JR., and HELEN THIERRY, Appellants
• Court: Missouri Supreme Court

249 S.W. 946

298 Mo. 25

CHARLES W. THIERRY v. CHARLES W. THIERRY, JR., and HELEN THIERRY, Appellants

Supreme Court of Missouri, First Division

April 6, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

John B Reno for appellants.

(1) The court erred in permitting respondent to testify to facts tending to establish a resulting trust in five of the six parcels of property covered by the deed of July 27, 1910, as against his deceased wife. R. S. 1909, sec. 6354; Elsea v. Smith, 202 S.W. 107; Cloves v. Cloves, 239 S.W. 145; Orr v. Trust Co., 236 S.W. 648; Looker v. Davis, 47 Mo. 145; Angell v. Hester, 64 Mo 142; Ring v. Jamison, 66 Mo. 424; Chapman v. Dougherty, 87 Mo. 617; Smith v. Smith, 201 Mo. 533; Herndon v. Gates, 194 S.W. 46; Danciger v. Stone, 210 S.W. 865; Edmonds v. Scharff, 213 S.W. 823; Weiermueller v. Scullin, 203 Mo. 466. (2) Annie Thierry was a necessary party when the suit was filed, and her heirs were necessary parties when the case was tried, without whose presence no valid decree could be entered. R. S. 1909, sec. 1733. (3) The evidence fails to establish a constructive trust in favor of the respondent as against appellant. R. S. 1909, sec. 2868; Ferguson v. Robinson, 258 Mo. 113; Derry v. Fielder, 216 Mo. 115; Stillwell v. Bell, 248 Mo. 61; Bender v. Bender, 220 S.W. 929; Thompson v. Thompson, 211 S.W. 56; Heil v. Heil, 184 Mo. 665, 676; Price v. Kane, 112 Mo. 419; 1 Perry on Trusts, sec. 134; Hillman v. Allen, 145 Mo. 638; Green v. Cates, 73 Mo. 115. (4) The trust declared on by plaintiff was in fraud of the rights of plaintiff's wife Annie. Ferguson v. Robinson, 258 Mo. 113; Stillwell v. Bell, 248 Mo. 61; Derry v. Fielder, 216 Mo. 176.

William F. Smith and Thomas E. Mulvihill for respondent.

(1) Respondent was not disqualified as a witness by reason of the death of his wife, co-grantor, from testifying to conversations and transactions had with appellant, relating and leading up to the execution, recording and delivery of the deed of July 27, 1910. Insurance Co. v. Broyles, 78 Mo.App. 368; Vandegrif v. Swinney, 158 Mo. 532; Fulkerson v. Thornton, 68 Mo. 468; Nugent v. Curran, 77 Mo. 325; Banking Co. v. Loomis, 140 Mo.App. 74; Birdsall v. Coon, 157 Mo.App. 385; Stanton v. Ryan, 41 Mo. 513; Weiermueller v. Cullen, 203 Mo. 472; Short v. Thomas, 178 Mo.App. 413; Orr v. Rode, 101 Mo. 398. (2) Annie Thierry was not a necessary party to the suit, neither at the time it was filed, nor were her heirs necessary parties at the time the case was tried. At the time Annie Thierry joined with her husband in the execution of the deed dated July 27, 1910, she had no heirs, and at her death, on May 21, 1920, she had no interest in the property in controversy, having previously conveyed or extinguished whatever interest she might have had in the property by joining with her husband in the deed of conveyance of July 27, 1910, whereby the title to the property in said instrument described was conveyed to and vested in appellant. Respondent is the real party in interest. Our statute is express that "every action shall be prosecuted in the name of the real party in interest." R. S. 1919, sec. 1155. (3) Respondent was competent to testify to facts creating a resulting trust in his favor in the several pieces of property described in the petition, the title of which was in the name of his wife, notwithstanding her death at the time the testimony was given. Moreover respondent did not testify to any contract with his wife. His right to the property in question was not derived through any contract with her, but from a third party, from whom the property was purchased, and paid for by respondent with his own money, the title being carried in the name of his wife for the sole purpose of disqualifying himself from becoming surety on contractors' bonds. Freeland v. Williamson, 220 Mo. 230; Stratton v. Cole & Stratton, 203 Mo.App. 265; Bajohr v. Bajohr, 184 S.W. 77; Seabold v. Christman, 7 Mo.App. 254; Seabold v. Christman, 75 Mo. 308; Killie v. Gooch, 184 S.W. 1158. (4) Appellant's objection to the competency of respondent as a witness under Section 5410, Revised Statutes 1919, was untimely, too sweeping when made, and was therefore properly overruled. Elsea v. Smith, 273 Mo. 407; Burns v. Polar Wave I. & F. Co., 187 S.W. 147; Weier-mueller v. Scullin, 203 Mo. 466. (5) The evidence in this case, and all of the facts and circumstances antecedent and subsequent to the execution of the deed of July 27, 1910, is sufficient to establish a constructive trust in favor of the respondent and against the appellant, and said trust was not, and could not be, in fraud of the rights of plaintiff's wife. O'Day v. Annex Realty Co., 191 S.W. 41; State ex rel. Cruzen v. Ellison, 211 S.W. 880; Phillips v. Jackson, 240 Mo. 310; Stahl v. Stahl, 68 L. R. A. 617.

SMALL, C. Brown and Lindsay, CC., not sitting.

OPINION

SMALL, C.

-- I. This is a suit in equity, filed October 17, 1919, by the plaintiff, Charles W. Thierry, against his son, Charles W. Thierry, Jr., and his son's wife, Helen M. Thierry, to set aside a deed made by the plaintiff and his wife purporting to convey to his said son for a consideration of one dollar, seven lots of real estate in the city of St. Louis, and to invest the title thereto in the plaintiff. Said deed was dated July 27, 1910, and recorded February 28, 1911.

The amended petition upon which the case was tried states: That at the time of said conveyance the title to one piece of said real estate was in the name of plaintiff, and the remainder was carried in the name of plaintiff's wife, Annie, and was held in trust by her for the plaintiff, who had earned and purchased and paid for said land with his own money, but had the title put in his wife's name as a matter of convenience. That the defendant, Charles W. Thierry, Jr., who was a physician, a short time prior to the date of said deed, with the intent to defraud plaintiff, deceitfully suggested to plaintiff the advisability of plaintiff and his wife conveying to said defendant all of said real estate, which was all the property possessed by plaintiff, stating that plaintiff's wife, the mother of said defendant, was falling into mental and physical decline, and was liable to be incapacitated from signing deeds at any time, so that, if a buyer should be found for any of said property, a sale and transfer could not be made. That relying upon the advice of said defendant, said deed was executed to said defendant in the trust and upon the agreement that he would hold title to said real estate for the sole use, benefit and convenience of plaintiff and would convey such lands at the request and for the use and benefit of plaintiff, as he might from time to time direct, and that plaintiff should at all times retain the possession, use and ownership of said land and receive the rents and pay the taxes and repairs and expenses incident thereto, and to manage and dispose of the property as his own. That said defendant paid no consideration whatever for said lands. That the plaintiff's wife's health did fail and she was afterwards placed in an asylum, where she died May 21, 1920. That the plaintiff sold two of the tracts of ground conveyed by said deed, which had formerly stood in his wife's name (selling one in 1911 and the other in 1914), for $ 2500, and conveyance thereof was made by defendants to the purchasers, plaintiff receiving the whole purchase price as agreed when said deed of July 27th was made. That the remaining five tracts, mentioned in said deed of July 27, 1910, have not been sold or conveyed, and the record title still stands in the name of said defendant. That plaintiff is, and ever since said deed was made, has been in possession of all of said lands and received the rents, issues and profits thereof, and paid all taxes and expenses thereof in pursuance and execution of the trust, agreement and understanding between the plaintiff and said defendant at the time said deed was made. That shortly before this suit was commenced, and while his wife was still alive, plaintiff requested the defendant to reconvey said unsold property to him, but said defendant refused to do so in disregard of his agreement and duty and in fraud of plaintiff's rights in the premises.

The answer put the allegations of the petition in issue, and pleaded defect of parties, in that it appeared from the face of the petition that plaintiff's wife, Annie Thierry, was a necessary party. Also pleaded that said conveyance was intended as a gift or advancement "by way of anticipation of defendant, Charles W. Thierry, Jr's, share of the estate of his father and mother. And that at the time said conveyance was executed, plaintiff had a quarrel or dispute with his daughter, Annie, then and now, the wife of one John Scherrer, and that, then and there, in order to cut off said daughter, Annie, from any share in the enjoyment or participation of the properties described in the petition, executed, together with his wife, the instrument of July 27, 1910, without solicitation, advice or request, on the part of the defendant, and as a gift by way of advancement, and in order to prevent his said daughter, Annie, from receiving any share of the estate."

For a further defense, the answer states that the plaintiff induced his wife to join in said conveyance to said defendant, in order to defraud plaintiff's wife out of her interest in said property. Further answering, defendants say they have no knowledge "as to whether plaintiff paid the consideration for the purchase of property, the title to which was taken in his wife's name, but state that the same was given her absolutely as a gift; and at the time of the purchase of the properties described in plaintiff's...