(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. Campbell, 9 Mo. 280. Defendants established no equities authorizing a decree in their favor. There were no errors authorizing a reversal, and the judgment of the trial court is therefore affirmed. All concur. SPRADLING v. SPRADLING. (No. 21271.) (Supreme Court of Missouri, Division No. 2. June 4, 1920.) 1. Trusts 81 (3)-Resulting trust in favor of wife on purchase by husband with her money. Where a husband purchases land, and pays for it partly with his wife's money, title taken in his own name is held in resulting trust for her in proportion. charge of the proceeds thereof, amounting to $1,200; that thereafter defendant purchased 80 acres of land in Butler county, Mo., to wit, the east half of the northeast quarter of section 11, township 24 north, range 4 east, and 80 acres of land in Ripley county, Mo., to wit, the east half of the southeast quarter of section 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 present; that he disposed of plaintiff's property and paid for said land out of the proceeds thereof. It is further alleged that plaintiff never at any time gave defendant permission, either written or oral, to invest the proceeds of her said property in the land above described and take title thereto in his own name, but, on the contrary, all of said transactions were had without plaintiff's knowledge or consent; that defendant has never reimbursed plaintiff 2. Trusts 89 (5)-Resulting trust must be for any of her said property. The petition clearly proved. To establish a resulting trust, the evidence of it must be clear, unequivocal, and so definite as to leave no room for doubt. 3. Trusts 89(1)-Evidence held to call for money decree for wife seeking to establish resulting trust. In a wife's suit against her husband to establish resulting trust in lands in his name as purchased with her funds, evidence held to call for decree for the wife for $220, in lieu of any interest in the realty. concludes with a prayer for a decree, declaring a resulting trust as to said land in favor of plaintiff, divesting defendant of the title thereto, vesting the same in plaintiff, and for general relief. On April 10, 1918, defendant answered with a general denial. On July 6, 1918, the court entered judgment for defendant. Plaintiff in due time filed her motion for a new trial, which was overruled, and the cause duly appealed by her to this 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 the testimony and rulings of the court in the opinion. Henson & Woody, of Poplar Bluff, for appellant. Hill & Phillips, of Poplar Bluff, for respondent. This is a proceeding in equity, brought in the circuit court of Butler county, Mo., to establish 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 to have been converted by defendant to his own use without her consent. On the contrary, under the pleadings, this is an action in equity, brought by plaintiff against her husband to establish a resulting trust in the two 80-acre tracts of land described in petition. It is asserted in the latter that defendant acquired possession of plaintiff's personal property and the proceeds of her Butler county real estate; that out of such assets he paid for said 160 acres of land sought to be charged herein. The answer of defendant is a general denial. The case was tried in the circuit court upon above theory, and must be disposed of here in the same manner. [1] It may be conceded generally in passing that, where a husband purchases land and pays for it partly with the money of his wife, the title thereto, if taken in his own name, is held in trust for her in proportion as the amount of her separate money thus used by him bears to the whole of the purchase price. Holman v. Holman, 183 S. W. 623; Haguewood v. Britain, 273 Mo. loc. cit. 94, 199 S. W. 950; Moss v. Ardrey, 260 Mo. 595, 169 S. W. 6; McLeod v. Venable, 163 Mo. 536, 63 S. W. 847; Jones v. Elkins, 143 Mo. 647, 45 S. W. 261. [2] 2. It is equally as well settled that, in order to establish a resulting trust in real estate, the evidence of such trust must be clear, unequivocal, and so definite and positive as to leave no room for doubt in the mind of the chancellor. Davis v. Cummins, 195 S. W. loc. cit. 754, 755; Aeby v. Aeby, 192 S. W. loc. cit. 99; Hunnell v. Zinn, 184 S. W. loc. cit. 1156; Ferguson v. Robinson, 258 Mo. 113, 167 S. W. 447; Northrip v. Burge, 255 Mo. loc. cit. 655, 164 S. W. 584; Easter v. Easter, 246 Mo. 409, 151 S. W. 413; Waddle v. Frazier, 245 Mo. 391, 394-396, 151 S. W. 87; Williams v. Keef, 241 Mo. 366, 145 S. W. 425; Smith v. Smith, 201 Mo. 533, 547, 100 S. W. 579; Reed v. Sperry, 193 Mo. loc. cit. 173, 174, 91 S. W. 62; Viers v. Viers, 175 Mo. 444, 75 S. W. 395; Philpot v. Penn, 91 Mo. 38, 3 S. W. 386; Jackson v. Wood, 88 Mo. 76; Forrester v. Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423. were in a country store building in the western part of Butler county. The difference between the value of the farm and goods was $1,127.96. Plaintiff and defendant executed and delivered to Livingston their joint note for said difference, and secured the same by chattel mortgage on the goods. Plaintiff testified that she bought the store and regarded it as belonging to herself and husband. When defendant was not making ties or engaged in other work, he assisted plaintiff at the store. She testified, that they ran the store for about two years, and that she lost money every month they operated it. It appears from the evidence that there was paid on the Livingston note during said two years about $500. Livingston then took the remnant of goods back on his indebtedness in March, 1916, at about $900. Plaintiff testified: That they lived on part of the proceeds of said goods; that "the money that was deposited in the Farmers' Savings Bank came from the sale of merchandise in the store and was de posited in the name of H. S. Spradling. He said he didn't have any money of his own deposited there at the time." (Italics ours.) The trade for the store was made in December, 1913. Defendant admits that after they acquired the store the money which he earned, as well as that which was derived from the sale of goods, was deposited in the bank in his name until August, 1915, when he then deposited his money separately. He further testified: * * out for myself. That was in August [1915] "I saw what was coming, and I had to look before we separated in February [1916]. I had been depositing my money with hers, you know; just put the money in the bank and then wrote out a check for $20 to the Munger people. We put our money together until August, 1915, and then I didn't put any more in the bank for her. * * Both accounts were in the name of H. S. Spradling, the store account and the one I opened later. The account at the bank was run in my name. These checks that were charged were charged in my name." 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 80 that after Sidney had paid $70, defendant acres of land in Butler county, Mo., traded to took the contract off his hands, and became O. 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 of their marriage he owned a mule and a calf, and had $50 or $60 in his pocket. Plaintiff owned the 80 acres aforesaid, described in her petition, and, with the assistance of defendant, traded the same to O. J. Livingston for said goods, but not the building in which they were located. The land was taken at for the years 1914 and 1915 about $440. This amount was evidently paid out of the funds in the bank belonging to plaintiff and defendant jointly. The contracts for sale of land to defendant were not recorded. The defendant testified as follows: "The contract says that, if I should die, the (222 S.W.) my heirs. The deed was to be made to me and her; in case I died before it was paid out, it was to be made to her." Plaintiff testified that: Defendant further testified that: "At the time we separated I still owed something like $760 on this land." We are of the opinion that the evidence shows the above sum of $760 has been paid out of the separate earnings of defendant, in which plaintiff had no interest. [3] While it is a difficult matter to determine what ought to be done in a case of this character, we have, after reading the records and briefs carefully, reached the conclusion that the lower court should enter a decree in favor of plaintiff for the sum of $220, with interest thereon at the rate of 6 per cent. per annum from March 1, 1916, in lieu of any interest in the real estate in controversy. It appearing from defendant's brief that he has finished paying for said land and has a deed therefor, we reverse and remand the cause, with directions to the trial court to set aside its decree and to enter a new decree in favor of plaintiff for the amount and interest aforesaid, to be paid within a reasonable time, and declaring therein that said decree shall be a first lien on said 160 acres in controversy. dent for specific performance of an agreement In an action against the estate of a dece to will land and a certain income in return for personal services, evidence held not to satisfactorily prove the existence of such contract. 4. Specific performance 121 (2)—Oral contract to will land must be proven beyond reasonable doubt. In an action against the estate of a decedent for specific performance of an oral contract to will land, the existence of the contract must be proven beyond a reasonable doubt. 5. Wills 58(1)-Mere intent to will not enforceable. Proof that a decedent intended to will property to reward one for services rendered, independent of any contractual obligation, gives the intended beneficiary no rights, even though it be shown that the decedent would have carried out such disposition and made a will if he had not died suddenly. dent for specific performance of an agreement respondents. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 without bequesting to her by will the sum of $400 Stowell is administrator of the estate of 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 George W. Main died possessed of said real estate and of personal property of the value of $30,000. said Main. The allegations in the petition as to the contract and the performance thereof by the plaintiff are as follows: "That in the year 1906 plaintiff resided in Kansas City, Mo., and said George W. Main came to her house and shared a room with another man. That at the time he had some employment which paid him small wages, but stated to plaintiff that he would inherit a considerable sum of money some day, and meanwhile, if plaintiff would give him his board and take care of him, he would repay plaintiff when he came into his inheritance by giving her a home with enough to live on besides to compensate her for caring for him and making a home for him. That plaintiff accepted such offer and made said agreement with said George W. Main, and, relying upon said promise, plaintiff furnished board to said George W. Main, and also did his washing, ironing, and mending, all without compensation, during all the time that he lived with her; that said George W. Main, with the exception of one year, lived at plaintiff's house from 1906 until his death in 1916. "That in the year 1911 the father of said George W. Main came to Kansas City from Illinois and purchased and gave to said George W. Main the following described real estate in Jackson county, Mo., to wit: The south 4.39 feet of lot 92 and the north 21 feet of lot 93, Oglesbay's First addition to the city of Kansas, now Kansas City. "That, immediately after said real estate was purchased for him by his father, said George W. Main reiterated his promises to plaintiff and specifically agreed verbally with plaintiff at her home in Kansas City that in consideration of what she had done and was doing for him he would will her said real estate at his death, and the sum of $400 per year as long as she should live; that in January, 1913, the father of said George W. Main died, and in January, 1914, his mother died intestate, leaving real and personal property to said George W. Main of the value of $35,000. "That from that time until his death said George W. Main remained at the home of plaintiff, doing nothing but consuming inordinate quantities of intoxicating liquors; that he finally became blind and utterly helpless, and was confined to his bed for months before his death, during all of which time he required the attention of plaintiff day and night. "That, relying upon the promises of said George W. Main to will her said real estate and to further provide for her as above stated, plaintiff provided a home for him and furnished him board and did his washing, ironing, and mending, and when he was sick plaintiff waited upon him and nursed him day and night "That the defendant Carrie Byram is a sister of said George W. Main and his only heir at law, and said Claude Byram is the husband of said Carrie Byram. * "Wherefore plaintiff prays judgment," etc. The answer put the allegations of the petition in issue. It also alleged that the contract sued on was not in writing, as required by the statute of frauds, and that said real estate was mortgaged by said Main in his lifetime for $500 to the knowledge of the plaintiff, and after his death the defendant Carrie Byram, believing she was the sole heir of said Main and entitled to said real estate, paid off said note for $500, and that the plaintiff stood by and permitted her to do so without any claim to said property. The reply admitted the execution of said deed of trust, but denied that plaintiff had knowledge thereof, and alleged that the deed of trust was paid off by said defendant with the money received from her brother's estate as his heir. After hearing the plaintiff's evidence, the lower court found for the defendants, and dismissed the petition. Plaintiff appealed to this court. Plaintiff's testimony was substantially as follows: Mrs. Todd Mason, the daughter of the plaintiff, testified on direct examination: That she knew said Main in his lifetime. That in 1906 she and her mother, the plaintiff, were living at 1522 Lydia avenue, and that said Main came to their house to room. He was out of work at the time. He continued to room there until March 27, 1916, when he died. That he did not come there to board, but only to room, but "we fed him; he was out of work." He paid for his room a short time. "Q. Just tell, as near as you can recollect, what he did say to your mother in regard to paying for the room and board after he became unable to pay for it. A. He said that some day he would pay up for this. He would give mother a home, if she would take care of him, and feed him, and let him room there, and be one of the family. He said some day he would have some money. He continued to live at our home and take his meals there. He got his money when his mother died. He just said some day he would have some money. He continued to live at our home and take his meals there. He actually came in possession of his money. He said that Mother should have a good home and money besides, (222 S.W.) father and mother were then living. His father died first. He was at our house two or three times. Mr. and Mrs. Main came to make him a visit, and he liked it so well and was so pleased to think that George was so happy with us and we took such good care of him (stricken out by court on objection of defendants). Mr. Main bought a home at 1516 Lydia avenue and gave it to George and Mamma (the words "and Mamma" stricken out on defendants' motion). "Q. Now, after this house or this piece of property was bought by George Main's father and given to him, state what, if any, conversation that you heard between your mother and George Main in regard to that particular piece of property, about what would be done with it. A. He said, 'Old lady, that home is yours, or a better one, with all the taxes and everything kept up'; not an old house, but a new house with the insurance paid and kept in repair, and $400 a year. He said, 'You ought to get along nicely on $400 a year.' "Q. What length of time elapsed after the death of George Main's father before his mother died? A. I think about a year and a half. "Q. And when was it that George Main came into the possession of his property; was it after the death of his mother? "Mr. Hayward: I object to leading questions. "Q. When, with reference to the death of his mother? A. Yes, sir; after the mother died he came in direct possession. "Q. Now, what conversation, if any, did you hear between George Main and your mother in regard to this amount of money that he would leave her, if any, for her support? A. Oh, I have heard him say lots of times, I can't just name the date or anything like that, but he said it a good many times. "The Court: Said what? "A. He said that Mamma should have the home, that home or one better, with $400 a year. "Q. What was the condition of his health at that time? A. At that time his health was good, only he was a man that drank an awful lot. "Q. But did his health change after that? A. Yes, sir; he went blind; he was pretty near totally blind for six or eight months, something like that. "Q. Now, during that time what services did your mother render him? A. Everything. "Q. What did she do for him? A. She waited on him and washed his hair and neck and ears and gave him a bath and washed his feet; he was unable to do anything; she had to lead him from one chair to another, and to the bathroom, and in fact she waited on him like he was a baby. "Q. Was he confined to his bed at any time? A. No, sir; he sat mostly in a chair. "Q. Now, what, if anything, was said about this extra service that your mother was rendering for him, as to how that would be paid? A. He said Mamma would be well taken care of. "Q. And did he say when or how much or in any particular? A. Only he thought $400 a year and a good home. "Q. At the time, or after the father bought this home, where was this number? A. 1516 Lydia. 222 S. W.-52 "Q. And did you and your mother and George Main live in that home for a while? A. Yes, sir. "Q. For about how long? A. Four or five years. "Q. And from there where did you go? A. To 1206 Virginia. "Q. Did George Main continue to own that home at 1516 Lydia? A. Yes, sir; he collected the rents there. "Q. What was the reason for leaving 1516 Lydia? A. There were negroes all around us, and we were the only white family left in the block [except another family across the street]. "Q. And after you moved to 1206 Virginia who collected the rent at 1516 Lydia? A. George Main. A. "Q. What did he do with the money? Well, he spent it; we didn't see any of it. "Q. Did he pay the rent at 1206 Virginia? A. He did; yes, sir. "The Court: Paid the rent at the place you moved to A. Yes, sir. "Q. (Mr. Laughlin): Previous to his death, how long a time was he confined to the house? A. About six or eight months. "Q. And did he have any one else to look after him and nurse him except your mother? A. When my mother got down-she had waited on him until she couldn't do it any more, and she got down in bed, and we had Dave Reinhardt; he was there at the house about six weeks. "Q. Did he get out on the street any during that time? A. Oh, yes. "Q. How long before his death was he confined continuously to his room? A. He was not confined to his room, but to the house; he would go out and come back; he would be out a short time at a time. "Q. Now, what were his habits about drinking? A. Well, that was all he seemed to care for, was drink. "Q. How many drinks a day would he take? Well, that is hard to say. Pretty near every day at our house it was a quart to a quart and a half a day, and what he drank on the outside. "Q. Did he do any work at all after he got his money? A. No, sir." On cross-examination Mrs. Mason testified: He did not have the money and did not work for two or three months after he went to our house to live, and when he did get work he paid a dollar and a quarter for his room, but no board. After the first two or three weeks he boarded as well as lodged with us all the time. He paid room rent to Mother; he did not pay me. He did not pay room rent all the time. Cannot remember when he ceased to pay room rent. He told Mother, if she would take care of him, he would see she was taken care of. It was not a year, I doubt if it was six months, that he paid room rent. In 1911 the father and mother of said Main visited him at plaintiff's house, at which time the father purchased for him the property in question. It was known as No. 1516 Lydia avenue. The plaintiff, her daughter, and Main moved into this property at the time it was purchased. The father died in January, 1912, when Main went back to Illinois and lived |
