Wavrin v. Wavrin

• Decision Date: 13 March 1920
• Docket Number: No. 20808.,20808.
• Parties: WAVRON v. WAVRIN.
• Court: Missouri Supreme Court

220 S.W. 931

WAVRON v. WAVRIN.

No. 20808.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Appeal from St. Louis Circuit Court; Modes E. Cave, Judge.

Suit by John A. Wavrin against Blanche Wavrin. From a judgment for defendant, plaintiff appeals. Affirmed.

This is a proceeding in equity by John A. Wavrin against the respondent to establish a resulting trust in a fund of $8,000, which defendant had on deposit in her own name in the Mississippi Valley Trust Company, in St. Louis, Mo. The latter was also joined as a defendant in the court below, and enjoined from paying said money to respondent. Luke E. Hart, Esq., was appointed receiver pendente lite, gave bond as such, received from the trust company the above amount, and thereupon the cause was dismissed as to said trust company. Shortly prior to the institution of this action, the plaintiff herein, John Wavrin, commenced an action in the circuit court of the city of St. Louis, Mo., against defendant, for a divorce. She appeared to said action, filed a cross-bill, and asked for a decree of divorce from plaintiff. The divorce proceedings were assigned to division No. 13 of said court, and this cause assigned to division 14 of same. Bothcases, however, were tried in division 13 at the same hearing. On June 25, 1917, plaintiff dismissed his divorce proceeding. Thereupon this action and defendant's cross-bill for divorce were heard together before Judge Cave, in division 13, supra.

In the present action, plaintiff alleges, and the evidence shows, that appellant and respondent were married in St. Louis, Mo., on January 25, 1903, and lived together as husband and wife in said city, until about December 29, 1916. The petition alleges that during their married life plaintiff was a dentist, practiced his profession in said city, was too busy to look after his own business, had confidence in his wife, and intrusted her with large sums of his earnings to invest for him, as she might deem for his best interests; that he is unable to determine the amount of money thus furnished his wife; that she agreed and promised to act as his confidential agent and trustee in the investment of said moneys, to keep accurate book accounts of same, of the interest or other profits accruing from said Investments, and to account to plaintiff, as and when requested, both for the principal and interest aforesaid. It alleges, in substance, that defendant mingled her own funds with those of plaintiff, so that the latter cannot state the exact amount due him. The petition contains the following:

"That in view of the fact that both plaintiff and defendant, Blanche Wavrin, have interests in said fund of $8,000, that their respective rights therein will be best preserved by the appointment of a receiver to take charge of and hold said fund, subject to the orders of this court, until a final determination of the interests of plaintiff therein, and also that of defendant, Blanche Wavrin."

The petition concludes with a prayer that defendant be required to file a detailed statement of all moneys received from plaintiff, and of all disbursements made therefrom, and likewise prayed for general relief.

The answer of defendant is a general denial.

On July 30, 1917, the court dismissed defendant's cross-bill for a divorce, and on the same day found the issues for defendant in this action, and decreed that she was the owner of said $8,000, that plaintiff never had any interest therein, that defendant recover her costs, etc., and that the receiver should stand discharged. In order to avoid repetition, the evidence will be considered later.

Plaintiff, in due time, filed his motion for a new trial, which was overruled, and the cause duly appealed by him to this court.

Charles Erd, Robert A. Thomann, and Carlyle L.. Dunn, all of St. Louis, for appellant.

Charles Routs and Charles Fensky, both of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

Appellant has filed in this case a purported abstract of the record, covering over 700 pages of printed matter, in which the testimony of the various witnesses in the divorce case is intermingled with that taken in the present action. The statement in appellant's original brief is simply an argument, in which no reference is made to the printed abstract of record, nor are we referred to any page of same where the facts in controversy can be ascertained. A supplemental abstract of record has been filed, which is an improvement over the `previous one, but likewise contains matters relating to an alleged conspiracy to place plaintiff in an asylum, and which has no relevancy to the issues in this case. We have accordingly read the entire 700-page abstract, as well as the supplemental one, filed herein, and have likewise read the respective briefs of counsel.

Between 30 and 40 witnesses were examined orally at the trial. The testimony of the witnesses, as well as that of plaintiff and defendant, is in many respects in irreconcilable conflict. The characters of many of the witnesses, who testified in both the divorce case and the present action, were vigorously assailed and greatly besmirched. Although this Is a proceeding in equity, where it becomes our duty to pass upon the facts, yet as these witnesses were present in court, and the latter had ample opportunities to weigh the evidence, and consider the character of the witnesses, we are inclined to defer somewhat, if necessary, to the conclusions reached by the trial court. Creamer v. Bivert, 214 Mo. 473, 113 S. W. 1118; Huffman v. Huffman, 217 Mo. 182, 183, 117 S. W. 1; Nevius v. Moore, 221 Mo. 330-351, 120 S. C.W. 43; McCoy v. Randall, 222 Mo. loc. cit. 43, 121 S. W. 31; Bunnell v. Zinn, 184 S. W. 1154, 1155; Walker v. Wallis, 183 S. W. 1041. After having carefully considered both abstracts of record, in connection with the briefs filed, we are of the opinion that the trial court reached a correct conclusion in its disposition of this case. We deem it appropriate to briefly state the reasons for reaching above conclusion.

2. The real purpose of this proceeding is to have declared a resulting trust in favor of plaintiff, as to the $8,000 in controversy. In cases of this character it devolved upon plaintiff to establish by clear, strong, and unequivocal testimony, so definite and positive as to leave no room for doubt in the mind of the chancellor, that plaintiff furnished to defendant, as his agent, the funds of the latter, to invest for him, and that the $8,000 in controversy were the proceeds of such agreement. Davis v. Cummins, 195 S. W. loc. cit. 755, and cases cited; Hunnell v. Zinn, 184 S. W. loc. cit. 1150; Ferguson v. Robinson, 258 Mo. 113, 167 S. W. 447; Northrip v. Burge, 255 Mo. loc. cit. 654, 655, 184 S. W. 584, and cases cited; Waddle v. Frazier, 245 Mo. loc. cit. 405, 406, 151 S. W. 87; Medlin v. Morris, 243 Mo. 260, 148 S. W. 85. It is undisputed that whatever moneys defendant received from plaintiff were delivered to her by the latter. In Hunnell v. Zinn, 184 S. W. loc. cit. 1156, Judge Faris, speaking for this division, said:

"And where the purchase price of land is paid by a father or a husband and the title taken in the name of the child or of the wife, the prima facie presumption is, naught else appearing, that such land was intended as a gift or as an advancement. And while such presumption is said to be and is, of course, rebuttable, such rebuttal must be accomplished, says this court, by evidence which is strong, unequivocal, and convincing."

In Medlin v. Morris, 243 Mo. loc. cit. 277, 278, 148 S. W. 89, Judge Lamm, speaking on this question for Division 1, said:

"If plaintiff, as the testimony strongly suggests, invested his accumulations in the name of his wife to avoid the hazard of business obligations, thereby subjecting his means to hazards arising from matrimonial infelicity, that was his affair and does not concern a court of conscience on his complaint. He should have looked before he leaped and taken care not to jump from the frying pan into the fire. If, as some of the evidence indicates, plaintiff gave to his wife as a gift such increment of his wages as accrued to her through salvage from debt-paying, or from frugality, then that does not concern a court of conscience on his complaint. Will a chancellor, on his complaint, be less generous than he was with his own wife? He could give and she could get, unafraid of the law as between themselves. Running through the whole gamut of this case is the...