Warford v. Smoot

• Decision Date: 12 February 1951
• Docket Number: No. 41987,No. 1,41987,1
• Citation: 361 Mo. 879,237 S.W.2d 184
• Parties: WARFORD v. SMOOT et al
• Court: Missouri Supreme Court

Page 184

237 S.W.2d 184

361 Mo. 879

WARFORD v. SMOOT et al.

No. 41987.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1951.

Rehearing Denied March 12, 1951.

R. P. Smith, Cape Girardeau, for appellants.

Limbaugh & Limbaugh, Cape Girardeau, for respondent.

ASCHEMEYER, Commissioner.

This is a suit to establish a resulting trust in real estate. The decree was in favor of plaintiff (respondent) and ordered legal title vested in him subject to the lien of the deed of trust securing a note for $2000.00 and subject also to a lien in favor of defendants (appellants) for the net amount of money expended by them upon improvements on such property. Title to real estate is involved and jurisdiction is in this court. Carr v. Carroll, Mo.Sup., 178 S.W.2d 435; Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 774.

The substance of the petition is that in 1940 appellants negotiated the purchase of unimproved property in Cape Girardeau, Missouri, for respondent; that the property was conveyed to appellant, Cornelia Smoot, for a consideration of $600.00 which was paid by respondent; that, at the time, respondent was a nonresident of Missouri but that he had decided to live in Cape Girardeau upon retirement, and had bought the lot for the purpose of building a future home; that title was taken in the name of Cornelia Smoot for his convenience; that after his retirement and in 1945, he caused a residence to be constructed upon the property; that appellants paid a portion of the cost of construction; that in 1946, by mesne conveyances, Cornelia Smoot caused title to be vested in herself and her husband, Walter M. Smoot, without respondent's knowledge; that after completion, appellants and respondent occupied the property as a home; and that appellants, without the knowledge or consent of respondent, had advertised the property for sale and threatened to appropriate the proceeds of the sale to their own use.

The answer admitted that the property had been conveyed to Cornelia Smoot on April 11, 1940; that appellants had negotiated the purchase of the property; and that respondent had furnished the purchase money therefor but it is alleged that the money was given by respondent to his daughter, Cornelia Smoot, as a birthday gift. It also admitted that title to the property had become vested in appellants, as tenants by the entirety, without the knowledge or consent of respondent. All other allegations of the petition were denied. Other allegations of the answer are not material to this appeal and need not be noted.

There were no witnesses other than the parties to this suit. Respondent's testimony supports the allegations of the petition Respondent is 71 years old. He stated that in 1938 or 1939, when he was visiting his daughter, Cornelia Smoot, in Cape Girardeau, he told her that he was getting along toward retirement age; that when he retired, he wanted a home; and that if his daughter found a place, he would be glad to buy it so that he would have a home for the rest of his life after he retired. Later, his daughter wrote him that she had located the property involved in this suit. He wrote her that 'it sounded all right, if she liked the location out there to go ahead and buy it.' The property was purchased by him for $600.00 and he mailed a check for this amount to his daughter to pay for the property. He told her he wanted the deed made to her since he was a nonresident of Missouri and engaged in railroad work which was somewhat hazardous. The understanding was that when he retired, he would build a house there for a home for his old age. Sometime after the property was bought, his daughter informed him by letter that he had been offered $1200.00 for the property. He replied that he did not want to sell since he intended to carry out his plan to build a home on his retirement.

He retired in November, 1944, and came to Cape Girardeau to live with appellants in a home which they owned. In 1945 after discussion with appellants, a plan was agreed upon and he started construction of a house. He arranged for the purchase of materials and hired labor. He did a good deal of the work himself. He detailed items of material and labor paid for by him which aggregated, according to his testimony, $7123.28, exclusive of the value of the labor he put into the project. It took about one year to build the house. He admitted that appellant, Walter M. Smoot, had worked on the house and had put money into it but he was unable to state the amount.

They moved into the new house in December, 1945, and respondent continued to live there with appellants until this suit was filed in July, 1949. He learned that appellants had advertised the home for sale and brought suit to protect himself. He had paid taxes on the property until 1944. In July, 1944, he paid $130.00, the pro rata portion of expense chargeable to the property to bring in a water main to serve this and adjacent property. He mailed a check for this amount payable to his daughter.

Appellant, Cornelia Smoot, is respondent's only child. He was separated from his wife and in 1939, in connection with a property settlement made with his estranged wife, he conveyed to his daughter a house in Paducah, Kentucky, subject to a life estate in his wife. In 1937 he had loaned Walter Smoot $800.00 which was never repaid. In 1938 he gave the appellants and each of their three children $200.00 or a total of $1000.00. He gave his daughter birthday and Christmas gifts and on some of these occasions mailed her his pay checks amounting to $125.00 to $135.00 each. He had given diamond rings and wrist watches to his grandchildren and on one occasion had bought his daughter an electric refrigerator. He had not paid anything for room and board while he lived with appellants and he was not asked to do so.

Appellants admitted that respondent had furnished the purchase price of the lot but their testimony differed with that of respondent as to the circumstances. Both testified that the $600.00 was a gift to Cornelia Smoot and that respondent stated that he wanted to buy the property for Cornelia because he had never done anything for her. Walter Smoot added that respondent also said he wanted to give the lot to Cornelia as a birthday present although, concededly, the lot was bought in April, 1940, and Cornelia's birthday was in November. Cornelia admitted that respondent paid the taxes on the property prior to 1945 but Walter thought he had paid some taxes during that period of time. Cornelia agreed that she had written her father concerning the $1200.00 offer for the lot but did not remember whether he replied. She could not remember whether her father sent a check for $130.00 to pay for an extension of a water main to the property. Walter testified that he wrote checks in payment of this item and did not know anything about respondent sending a check to Cornelia. Walter denied that respondent had loaned him $800.00 but said that it was a gift to Cornelia.

Both appellants stated that there was no discussion as to the purpose of building the house on the lot or who would occupy it when it was completed. Cornelia put the matter thus: 'The property was mine, deeded to me, we didn't ask him for it. We never asked him for a dime in our lives, we never asked him for anything and if he wanted to build a house out there, it was all right with me, I didn't care. He knew it was in my name when he built the house out there.'

Cornelia said that in the beginning her father purchased all the materials and contracted for the labor to build the house. When it was about half finished, he asked that she deed the property to him and she refused. Respondent then stated that he would not spend any more money on it and appellants paid for the completion. Walter Smoot said, on the other hand: 'I think I made arrangements for every bit of the materials and contacted all of the labor, except maybe one or two.'

Cornelia testified that appellants sold their home on Middle Street in Cape Girardeau for $4500.00 and put the entire amount in the new house. Walter stated that the net amount realized on the sale of their home was $3600.00 or $3700.00 and this amount, with additional money, was put into the new house. He testified in detail concerning his expenditures and many exhibits were offered in evidence. Actually, the chancellor found from the evidence that appellants had expended a total of $2784.95 and appellants do not challenge this finding. Walter also stated that appellants had borrowed $2000.00 secured by a deed of trust on the property and had used the proceeds of this loan to buy an automobile.

Where the proof of a resulting trust rests upon parol evidence, the evidence necessary to establish such a trust must be clear, cogent and convincing and must exclude every reasonable doubt from the chancellor's mind. Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8, 19 and cases there cited. Absent circumstances raising a presumption or inference that a gift or advancement was intended, the general rule is that where property is conveyed to one person when the purchase price is paid by another, a resulting trust arises in favor of the person who paid the consideration for the conveyance. Restatement, Trusts, Sec. 440; 54 Am.Jur., Sec. 209, p. 158; Padgett v. Osborne, 359 Mo. 209, 221 S.W.2d 210,...