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(222 S.W.) prior equities as are of record at the time, pending between them; that at the time of applies with full force in the instant case. said marriage plaintiff was seized and posThere were no prior equities of record, nor sessed of 80 acres of land in Butler county, did either the purchaser at the foreclosure Mo., to wit, the north half of the southeast sale or any subsequent owner of the land in quarter of section 7, township 24 north, range the chain of title through which the plaintiff 5 east, of the value of $1,200; and was the holds have any knowledge of such equities owner of personal property in said county of as were sought to be established at the trial. the value of $800; that immediately after This conclusion, however, is but a reitera. said marriage defendant took charge of said tion of that before reached when reviewing property, and was permitted by plaintiff to the facts from another point of vantage. use and handle the same for her; that on

[10] The plaintiff was not required to December 8, 1913, at the instance of defendmake the parties to the deed of trust to se-ant, said farm was sold, and defendant took cure the $1,000 note defendants. Thayer v. charge of the proceeds thereof, amounting to Campbell, 9 Mo. 280.

$1,200; that thereafter defendant purchased Defendants established no equities au- 80 acres of land in Butler county, Mo., to wit, thorizing a decree in their favor. There the east balf of the northeast quarter of secwere no errors authorizing a reversal, and tion 11, township 24 north, range 4 east, and the judgment of the trial court is therefore 80 acres of land in Ripley county, Mo., to wit, affirmed.

the east half of the southeast quarter of secAll concur.

tion 5, township 24, range 4 east; that he took title or bond for title to all of said land in his own name, without the knowledge or

consent of plaintiff, when she was not presSPRADLING V. SPRADLING. (No. 21271.) ent; that he disposed of plaintiff's property

and paid for said land out of the proceeds (Supreme Court of Missouri, Division No. 2. thereof. It is further alleged that plaintitr June 4, 1920.)

never at any time gave defendant permission, 1. Trusts m81(3)-Resulting trust in favor of either written or oral, to invest the proceeds wife on purchase by husband with her money. of her said property in the land above describ

Where a husband purchases land, and pays ed and take title thereto in his own name, but, for it partly with his wife's money, title taken on the contrary, all of said transactions were in his own name is held in resulting trust for had without plaintiff's knowledge or consent; her in proportion.

that defendant has never reimbursed plaintiff 2. Trusts m89(5)-Resulting trust must be for any of her said property. The petition clearly proved.

concludes with a prayer for a decree, declarTo «establish a resulting trust, the evidence ing a resulting trust as to said land in favor of it must be clear, unequivocal, and so definite of plaintiff, divesting defendant of the title as to leave no room for doubt.

thereto, vesting the same in plaintiff, and for 3. Trusts em89(1)-Evidence held to call for general relief.

money decree for wife seeking to establish On April 10, 1918, defendant answered with resulting trust.

a general denial. In a wife's suit against her husband to es- On July 6, 1918, the court entered judgment tablish resulting trust in lands in his name as for defendant. Plaintiff in due time filed her purchased with her funds, evidence held to motion for a new trial, which was overruled, call for decree for the wife for $220, in lieu of and the cause duly appealed by her to this any interest in the realty.

court.

As this is a proceeding in equity, and we Appeal from Circuit Court, Butler County; are required to pass upon the evidence, in J. P. Foard, Judge.

order to avoid repetition, we will consider Suit by Marie Spradling against II. s. the testimony and rulings of the court in the Spradling. From judgment for defendant, opinion. plaintiff appeals. Reversed and remanded,

Henson & Woody, of Poplar Bluff, for apwith directions.

pellant. This is a proceeding in equity, brought in

Hill & Phillips, of Poplar Bluff, for rethe circuit court of Butler county, Mo., to es- spondent. tablish a resulting trust in the real estate hereafter described. The petition alleges that RAILEY, C. (after stating the facts as on August 18, 1912, plaintiff and defendant above). 1. This is not a proceeding at law, were married, and ever since that time have in which plaintiff seeks to recover a judgment been husband and wife; that for more than a for the value of her property alleged to have year before the filing of this petition plaintiff been converted by defendant to his own use and defendant have not lived together as hus- without her consent. It is not a proceeding band and wife, and that a divorce suit is now in equity, calling for an accounting of trust

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

property belonging to plaintiff, and alleged were in a country store building in the westto have been converted by defendant to his ern part of Butler county. The difference beown use without her consent. On the contra- tween the value of the farm and goods was ry, under the pleadings, this is an action in $1,127.96. Plaintiff and defendant executed equity, brought by plaintiff against her hus- and delivered to Livingston their joint note band to establish a resulting trust in the two for said difference, and secured the same by 80-acre tracts of land described in petition. chattel mortgage on the goods. Plaintiff tesIt is asserted in the latter that defendant ac- tified that she bought the store and regarded quired possession of plaintiff's personal prop- it as belonging to herself and husband. When erty and the proceeds of her Butler county defendant was not making ties or engaged in real estate; that out of such assets he paid other work, he assisted plaintiff at the store. for said 160 acres of land sought to be charg. She testified, that they ran the store for ed herein. The answer of defendant is a about two years, and that she lost money general denial. The case was tried in the every month they operated it. circuit court upon above theory, and must It appears from the evidence that there be disposed of here in the same manner. was paid on the Livingston note during said

[1] It may be conceded generally in pas- two years about $500. Livingston then took sing that, where a husband purchases land the remnant of goods back on his indebtedand pays for it partly with the money of his ness in March, 1916, at about $900. wife, the title thereto, if taken in his own Plaintiff testified: name, is held in trust for her in proportion as

That they lived on part of the proceeds of the amount of her separate money thus used said goods; that “the money that was deposited by him bears to the whole of the purchase in the Farmers' Savings Bank came from the price. Holman v. Holman, 183 S. W. 623; sale of merchandise in the store and was deHaguewood v. Britain, 273 Mo. loc. cit. 94, posited in the name of H. S. Spradling. He 199 S. W. 950; Moss v. Ardrey, 260 Mo. 595, said he didn't have any money of his own de169 S. W. 6; McLeod v. Venable, 163 Mo. posited there at the time." (Italics ours.) 536, 63 S. W. 847; Jones v. Elkins, 143 Mo. The trade for the store was made in De647, 45 S. W. 261.

cember, 1913. Defendant admits that after [2] 2. It is equally as well settled that, in they acquired the store the money which he order to establish a resulting trust in real es- earned, as well as that which was derived tate, the evidence of such trust must be clear, from the sale of goods, was deposited in the unequivocal, and so definite and positive as bank in his name until August, 1915, when he to leave no room for doubt in the mind of the then deposited his money separately. He furchancellor. Davis v. Cummins, 195 S. W. loc. ther testified: cit. 754, 755; Aeby v. Aeby, 192 S. W. loc. cit. 99; Hunnell v. Zinn, 184 S. W. loc. cit. 1156 ; out for myself. That was in August (1915)

"I saw what was coming, and I had to look Ferguson v. Robinson, 258 Mo. 113, 167 S. W. before we separated in February (1916). I had 447; Northrip v. Burge, 255 Mo. loc. cit. 655, been depositing my money with hers, you know; 164 S. W. 584; Easter v. Easter, 246 Mo. 409, just put the money in the bank and then wrote 151 S. W. 413; Waddle v. Frazier, 245 Mo. 391, out a check for $20 to the Munger people. 394-396, 151 S. W. 87; Williams v. Keef, 241

We put our money together until AuMo. 366, 145 S. W. 425; Smith v. Smith, 201 gust, 1915, and then I didn't put any more in Mo. 533, 547, 100 S. W. 579; Reed v. Sperry, in the name of H. S. Spradling, the store ac

the bank for her. * * Both accounts were 193 Mo. loc. cit. 173, 174, 91 S. W. 62; Viers count and the one I opened later. The account v. Viers, 175 Mo. 444, 75 S. W. 395; Philpot at the bank was run in my name. These checks v. Penn, 91 Mo. 38, 3 S. W. 386; Jackson v. that were charged were charged in my name." Wood, 88 Mo. 76; Forrester v. Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423.

The evidence shows that Sidney Spradling 3. Turning to the evidence, we find that and defendant bought the 160 acres in conplaintiff and defendant were married in 1912, troversy from Munger Securities Company of and separated in 1916. She claims to have Kansas City, Mo., on the installment plan; owned, at the time of their marriage, the so that after Sidney had paid $70, defendant acres of land in Butler county, Mo., traded to took the contract off his hands, and became 0. J. Livingston, for a stock of goods; also the owner of his interest. The contract price seven or eight head of hogs, harness, some of the 160 acres in controversy was $1,200. chickens, household goods, and kitchen fur- Defendant testified that he paid on said land niture. Defendant testified that at the time for the years 1914 and 1915 about $140. of their marriage he owned a mule and a This amount was evidently paid out of the calf, and had $50 or $60 in his pocket. Plain- funds in the bank belonging to plaintiff and tiff owned the 80 acres aforesaid, described in defendant jointly. her petition, and, with the assistance of de- The contracts for sale of land to defendant fendant, traded the same to 0. J. Livingston were not recorded. for said goods, but not the building in which The defendant testified as follows: they were located. The land was taken at "The contract says that, if I should die, the

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(222 S.W.) my heirs. The deed was to be made to me and to will land and a certain income in return for her; in case I died before it was paid out, it personal services, evidence held insufficient to was to be made to her."

show that plaintiff complied with the contract

as alleged in her petition. Plaintiff testified that:

3. Specific performance en 121 (7) - Contract "At the direction of defendant, I drew checks

to convey land not proven. on the bank to make these payments on the land. The account in the bank was in his dent for specific performance of an agreement

In an action against the estate of a decename." (Italics ours.)

to will land and a certain income in return Defendant further testified that:

for personal services, evidence held not to sat

isfactorily prove the existence of such con“At the time we separated I still owed some- tract. thing like $760 on this land.”

4. Specific performance Omw 121(2)-Oral con. We are of the opinion that the evidence tract to will land must be proven beyond rea. shows the above sum of $760 has been paid

sonable doubt. out of the separate earnings of defendant, in In an action against the estate of a decewhich plaintiff had no interest.

dent for specific performance of an oral con[3] While it is a difficult matter to deter- tract to will land, the existence of the contract mine what ought to be done in a case of this

must be proven beyond a reasonable doubt. character, we have, after reading the records 5. Wills Ow58(1)-Mere intent to will not enand briefs carefully, reached the conclusion forceable. that the lower court should enter a decree in

Proof that a decedent intended to will propfavor of plaintiff for the sum of $220, with erty to reward one for services rendered, ininterest thereon at the rate of 6 per cent. per dependent of any contractual obligation, gives annum from March 1, 1916, in lieu of any in the intended beneficiary no rights, even though terest in the real estate in controversy.

it be shown that the decedent would have carIt appearing from defendant's brief that he ried out such disposition and made a will if

he had not died suddenly. has finished paying for said land and has a deed therefor, we reverse and remand the 6. Appeal and error en 1048(6) - Error in cause, with directions to the trial court to cross-examination harmless in equity case. set aside its decree and to enter a new decree If it was error for counsel on cross-examin favor of plaintiff for the amount and inter- ination of witnesses to inquire as to their tesest aforesaid, to be paid within a reasonable timony in depositions without showing them time, and declaring therein that said decree the depositions, such was not reversible error shall be a first lien on said 160 acres in con- in an equity case, since the appellate court troversy.

will simply disregard the alleged testimony in

the deposition. WHITE, C., concurs.

7. Appeal and error cm 1047 (3)-Striking evi. MOZLEY, C., absent.

dence in equity case harmless.

Errors, if any, in striking testimony in PER CURLAM. The foregoing opinion of an equity case is not reversible error, as the RAILEY, C., is hereby adopted as the opin- appellate court will read it as if not stricken ion of the court.

out. All concur.

8. Appeal and error w205–Excluding testi.

mony not reviewable in absence of statement of nature of evidence.

Objection that lower court erred in refusing WOODARD v. STOWELL et al. (No. 20871.) to allow plaintiff to testify as to conversations

bad with defendant did not show reversible (Supreme Court of Missouri, Division No. 1. error, where no statement was made to show June 2, 1920.)

the nature of the conversation nor with which

of several defendants it was had. 1. Specific performance ww39— Court of equity may enforce oral contract to convey land.

Appeal from Circuit Court, Jackson CounIn order to prevent the statute of frauds

ty; Thomas B. Buckner, Judge. from accomplishing or being used to accomplish the very purpose which it was enacted

Suit by Alice Woodard against Albert to prevent, courts of equity may, under cer. Stowell, administrator of the estate of George tain circumstances, permit specific performance of oral contracts to convey land, though made W. Main, deceased, and others. Judgment

for defendants, and plaintiff appeals. Afwith one since deceased.

firmed. 2. Specific performance 121(11)-Evidence

insufficient to show that plaintiff complied Edwin S. McCrary and L. A. Laughlin, both with contract,

of Kansas City, for appellant. In an action against the estate of a dece- Francis M. Hayward, of Kansas City, for dent for specific performance of an agreement respondents.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Iudexes

to

SMALL, C. I. This is a suit for specific "That, though plaintiff has fully kept and performance of an oral contract alleged to performed said agreement on her part, said have been made by George W. Main, de George W. Main died without specifically perceased, in his lifetime, to will the plaintiff forming the said contract on his part and withcertain real estate in Kansas City, Mo., and

out conveying said real estate or otherwise an annuity of $400. The defendant Albert C. vesting the title to the same in her and withStowell is administrator of the estate of out bequesting to her by will the sum of $100

per year as long as she should live, and neiGeorge W. Main, deceased, and defendant ther of said contract promises have been perCarrie Byram is the sister and sole heir of formed either wholly or in part, though said said Main.

George W. Main died possessed of said real The allegations in the petition as to the estate and of personal property of the value contract and the performance thereof by the of $30,000. plaintiff are as follows:

“That the defendant Carrie Byram is a sis

ter of said George W. Main and his only heir "That in the year 1906 plaintiff resided in at law, and said Claude Byram is the husband Kansas City, Mo., and said George W. Main of said Carrie Byram. * came to her house and shared a room with "Wherefore plaintiff prays judgment," etc. another man. That at the time he had some employment which paid him small wages, but The answer put the allegations of the petistated to plaintiff that he would inberit a con- tion in issue. It also alleged that the considerable sum of money some day, and mean- tract sued on was not in writing, as required while, if plaintiff would give him his board by the statute of frauds, and that said real and take care of him, he would repay plain-estate was mortgaged by said Main in his tiff when he came into his inheritance by lifetime for $500 to the knowledge of the giving her a home with enough to live on besides to compensate her for caring for him and plaintiff, and after his death the defendant making a home for him. That plaintiff accept- Carrie Byram, believing she was the sole heir ed such offer and made said agreement with of said Main and entitled to said real estate, said George W. Main, and, relying upon said paid off said note for $500, and that the promise, plaintiff furnished board said plaintiff stood by and permitted her to do so George W. Main, and also did his washing, iron- without any claim to said property. ing, and mending, all without compensation, The reply admitted the execution of said during all the time that he lived with her; deed of trust, but denied that plaintiff had that said George W. Main, with the exception knowledge thereof, and alleged that the deed of one year, lived at plaintiff's house from of trust was paid off by said defendant with 1906 until his death in 1916.

"That in the year 1911 the father of said the money received from her brother's estate George W. Main came to Kansas City from as his heir. Illinois and purchased and gave to said George After hearing the plaintiff's evidence, the W. Main the following described real estate in lower court found for the defendants, and Jackson county, Mo., to wit: The south 4.39 dismissed the petition. Plaintiff appealed to feet of lot 92 and the north 21 feet of lot 93, this court. Oglesbay's First addition to the city of Kan

Plaintiff's testimony was substantially as sas, now Kansas City.

follows: “That, immediately after said real estate was

Mrs. Todd Mason, the daughter of the purchased for him by his father, said George W. Main reiterated his promises to plaintiff plaintiff, testified on direct examination: and specifically agreed verbally with plaintiff That she knew said Main in his lifetime. at her home in Kansas City that in consid- | That in 1906 she and her mother, the plaintiff, eration of what she had done and was doing were living at 1522 Lydia avenue, and that said for him he would will her said real estate at Main came to their house to room. He was his death, and the sum of $100 per year as long out of work at the time. He continued to room as she should live; that in January, 1913, the there until March 27, 1916, when he died. father of said George W. Main died, and in Tbat he did not come there to board, but only January, 1914, his mother died intestate, leav- to room, but "we fed him; he was out of ing real and personal property to said George work.” He paid for his room a short time. W. Main of the value of $35,000.

"Q. Just tell, as near as you can recollect, “That from that time until his death said what he did say to your mother in regard to George W. Main remained at the home of plain-paying for the room and board after he betiff, doing nothing but consuming inordinate came unable to pay for it. A. He said that quantities of intoxicating liquors; that he some day he would pay up for this. He would finally became blind and utterly helpless, and give mother a home, if she would take care of was confined to his bed for months before his him, and feed him, and let him room there, death, during all of which time he required the and be one of the family. He said some day attention of plaintiff day and night.

he would have some money. He continued to "That, relying upon the promises of said | live at our home and take his meals there. George W. Main to will her said real estate He got his money when his mother died. He and to further provide for her as above stat- just said some day he would have some moned, plaintiff provided a home for him and fur- He continued to live at our home and nished him board and did his washing, ironing, take his meals there. He actually came in and mending, and when he was sick plaintiff possession of his money. He said that Mother waited upon him and nursed him day and night should have a good home and money besides,

ey.

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. *** Q. For about how long? A. Four or five

(222 S.W.) father and mother were then living. His father "Q. And did you and your mother and George died first. He was at our house two or three Main live in that home for a while ? A. Yes, times. Mr. and Mrs. Main came to make him sir. a visit, and he liked it so well and was pleased to think that George was so happy years. with us and we took such good care of him "Q. And from there where did you go? A. (stricken out by court on objection of defend- To 1206 Virginia. ants). Mr. Main bought a home at 1516 Lydia "Q. Did George Main continue to own that avenue and gave it to George and Mamma (the home at 1516 Lydia ? A. Yes, sir; he colwords "and Mamma" stricken out on defend lected the rents there. ants' motion).

"Q. What was the reason for leaving 1516 "Q. Now, after this house or this piece of Lydia ? A. There were negroes all around us, property was bought by George Main's father and we were the only white family left in and given to him, state what, if any, conver- the block [except another family across the sation that you heard between your mother street]. and George Main in regard to that particular "Q. And after you moved to 1206 Virginia piece of property, about what would be done who collected the rent at 1516 Lydia ? A. with it. A. He said, 'Old lady, that home is George Main. yours, or a better one, with all the taxes and "Q. What did he do with the money ? A. everything kept up'; not an old house, but a Well, he spent it; we didn't see any of it. new house with the insurance paid and kept "Q. Did he pay the rent at 1206 Virginia ? in repair, and $400 a year. He said, 'You ! A. He did; yes, sir. ought to get along nicely on $400 a year.! “The Court: Paid the rent at the place

"Q. What length of time elapsed after the you moved to A. Yes, sir. death of George Main's father before his "Q. (Mr. Laughlin): Previous to his death, mother died? A. I think about a year and how long a time was he confined to the house? a half.

A. About six or eight months. "Q. And when was it that George Main "Q. And did he have any one else to look came into the possession of his property; was after him and nurse him except your mother? it after the death of his mother?

A. When my mother got down-she had wait"Mr. Hayward: I object to leading questions. ed on him until she couldn't do it any more,

"Q. When, with reference to the death of and she got down in bed, and we had Dave his mother? A. Yes, sir; after the mother Reinhardt; he was there at the house about died he came in direct possession.

six weeks. "Q. Now, what conversation, if any, did you "Q. Did he get out on the street any during hear between George Main and your mother that time?

A. Oh, yes. in regard to this amount of money that he "Q. How long before his death was he conwould leave her, if any, for her support? A. fined continuously to his room? A. He was Oh, I have beard him say lots of times, I can't not confined to his room, but to the house; just name the date or anything like that, he would go out and come back; he would but he said it a good many times.

be out a short time at a time. "The Court: Said what?

Q. Now, what were his habits about drink. "A. He said that Mamma should have the ing? A. Well, that was all he seemed to care bome, that home or one better, with $400 a for, was drink. year.

"Q. How many drinks a day would he take? "Q. What was the condition of his health at Well, that is hard to say. Pretty near every that time? A. At that time his health was day at our house it was a quart to a quart and good, only he was a man that drank an awful a half a day, and what he drank on the outlot.

side. "Q. But did his health change after that? "Q. Did he do any work at all after he got A. Yes, sir; he went blind; he was pretty his money? A. No, sir.” Dear totally blind for six or eight months, some

On cross-examination Mrs. Mason testified: thing like that.

"Q. Now, during that time what services did He did not have the money and did not work your mother render him? A. Everything. for two or three months after he went to our

"Q. What did she do for him? A. She wait- house to live, and when he did get work he ed on him and washed his hair and neck and paid a dollar and a quarter for his room, but ears and gave him a bath and washed his feet; no board. After the first two or three weeks he was unable to do anything; she had to lead he hoarded as well as lodged with us all the him from one chair to another, and to the time. He paid room rent to Mother; he did bathroom, and in fact she waited on him like not pay me. He did not pay room rent all he was a baby.

the time. Cannot remember when he ceased Q. Was he confined to his bed at any time? to pay room rent. He told Mother, if she A. No, sir; he sat mostly in a chair.

would take care of him, he would see she was "Q. Now, what, if anything, was said about taken care of. It was not a year, I doubt if this extra service that your mother was ren- it was six months, that he paid room rent. dering for him, as to how that would be paid? In 1911 the father and mother of said Main A. He said Mamma would be well taken care of. visited him at plaintiff's house, at which time

"Q. And did he say when or how much or the father purchased for him the property in in any particular? A. Only be thought $400 question. It was known as No. 1516 Lydia a year and a good bome.

The plaintiff, her daughter, and Main "Q. At the time, or after the father bought moved into this property at the time it was this home, where was this number? A. 1516 | purchased. The father died in January, 1912, Lydia.

when Main went back to Illinois and lived 222 S. W.-52

avenue.

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