Stevens v. Fitzpatrick

VALLIANT. J. This suit involves the title to about 17 acres of land in Clay county, just across the fiver from Kansas City, being the east half of the southeast quarter of the northeast quarter section 23, township 50, range 33. According to the petition the land was purchased in 1881 by Edward A. Stevens and paid for by bim, but at his request and for his convenience the title was taken in the name of his father, William Stevens. William Stevens died in 1896, Edward died in 1902. The plaintiff, Ellen, is the widow of Edward, the executrix of his will and his devisee; the other plaintiffs are his heirs. The defendants (except, of course, the North Kansas City Development Company, a corporation) are heirs of William. The plaintiffs, other than Ellen, are also heirs of William. Edward in his lifetime made a contract of sale of the land to the defendant corporation, the Development Company, and part of the consideration was paid, but he died before the sale was consummated. The main question in the case is did the land belong to Edward or to his father, William? The petition is in two counts, the first is under section 650 to adjudge and quiet title, the second is in equity to restore an alleged lost deed from William to Edward. In the first count, in addition to the allegations that the land was bought and paid for by Edward and the title taken for convenience in the name of his father William, it is alleged that afterwards William and his wife made and executed a deed duly acknowledged conveying the land to Edward, but that that deed was never recorded and is now lost; also that Edward in his lifetime and the plaintiff Ellen since his death have been in adverse possession of the land for more than ten years. The second count contained substantially the same averments as the first with the addition of the statement of the contract of sale to the defendant corpor — 716 — ation, with, a prayer to have the lost deed restored and the defendants divested of their apparent record title and the plaintiff Ellen invested with title. Defendants O. H. Stevens and Fannie Stevens, his wife, who are the appellants in this court, filed their answer in which they aver that this suit is not instituted or being prosecuted in the name of the real party in interest, because prior to his death Edward had sold whatever interest he had in the land to one Shaffer and that the defendant, the North Kansas City Development Company, at the time of the institution of this suit was and for a long time had been in adverse possession of the premises, and that Shaffer when he bought had notice that the title was in the heirs of William Stevens, deceased. The answer also pleads that the plaintiffs’ claim is barred by the Statute of Limitations and by laches and there are specific denials of several statements in the petition about which there was really no dispute at the trial, to-wit, that plaintiff Ellen was not the widow or executrix or devisee of Edward or the other plaintiff, his heirs, etc. The answer of the North Kansas City Development Company-set up the contract of sale from Edward to Shaffer, the payment of $1,000 of the purchase money at the date of the contract and $4,000 paid later and the balance to be paid still later; that Shaffer really made, the contract for the corn oration and afterwards assigned it to them; that thereafter the long illness and subsequent death of Edward Stevens prevented the fulfilment of the contract on his part and it remains to be executed. Defendant Fannie D. Stevens and her husband, the appellants herein, also filed a cross-bill in which they set up that she was a bona-fide purchaser without notice of the adverse claims of any of the parties to this suit of an undivided two-thirds of one-fifth of the land in suit under a warranty deed from one Jacob — 717 — Davis and prays a sale of the land for partition. None of the facts constituting that transaction are stated. The testimony in the case leaves really no ground to question the truth of the statements in the plaintiffs ’ petition. The testimony shows that the source of the title was a sale of a 40-acre tract for taxes in 1881, which sale was attended by Henry A. Smith and Edward Stevens, each having a purpose to buy the land advertised for sale. They were acquainted with each other and on meeting there each disclosing to the other his purpose, Mr. Stevens saying that he was interested in the east half of the forty, it was agreed between them that Mr. Smith should purchase, take the sheriff’s deed, and afterwards convey the east half to Edward Stevens; that agreement was carried out, Edward Stevens paid to Mr. Smith the amount agreed on between them for the 20 acres he was to have, which was one-half the purchase price, with costs, etc., added, and requested the deed to be made in the name of his father as grantee, and that was done. That was the testimony of Mr. Smith and there was none to the contrary. The testimony tended to show that after the purchase Edward Stevens rented the land and held exclusive possession through his tenants from that date, 1881, to the date of the contract of sale to Shaffer for the defendant corporation, January 3, 1902, when the latter went into possession under Edward and has held it ever since awaiting the consummation of the contract. The testimony is also quite satisfactory that in 1889, or about that date, the father, William Stevens, joined by his wife, executed a deed conveying the title to Edward. The testimony on this point is. first that of an attorney for a railroad company which wanted to obtain a right of way through the land and he negotiated with Edward for the purchase of such right. The record title then stood in the name of William Stevens, and — 718 — the attorney knew that fact. The deed for the right of way, as submitted to the attorney for the railroad,, was signed by William Stevens and wife. The names of the grantors were not written in the caption of the deed but the space was left blank. The attorney came to the office of Edward with the deed in that condition to consummate the sale, there he met Edward and William Stevens, his father. The witness was asked to state what Edward said at that time, but on objection of defendant the court ruled that the statements of Edward were not admissible, that the witness should state what occurred. Whereupon the witness testified that Edward went to his safe and, in the presence of his father and witness, took out a deed and showed it to witness; it was a deed for this land from William Stevens and wife to Edward, dated in 1889 (the more exact date witness did not remember) and duly acknowledged, but not recorded; Edward then asked witness if he preferred to have him (Edward) and his wife also join in the deed as grantors, but witness said he did not care to have them do so, whereupon Edward filled the blank in the caption of the deed with the names of William and his wife and witness gave Edward a check for the money and took the deed. This witness a few years afterwards saw the deed again, in. 1895 or 1896. As attorney for another railroad company he at that time had occasion to examine it and did so. It was then in the possession of Edward Stevens. A son of Edward Stevens testified that he had seen the deed many times and he specified two occasions when he read it. He described it as a deed for this land to his father executed by his grandfather and grandmother and duly acknowledged. He knew the signatures of both bis grandfather and grandmother and recognized their signatures on this deed. The last time he saw the deed he put it in his father’s safe. Since his father’s death he had searched for it but — 719 — could not find it. The testimony on that point was practically undisputed. The testimony also showed that plaintiff Ellen was the widow of Edward and that by his will she was the sole devisee of all his real estate while she remained his widow and at her death or marriage it was to go to their two children who are plaintiffs, one of whom has deeded his interest to his mother. The testimony for defendant tended to show that during the period plaintiffs claim that Edward was in possession of the land through tenants some of the leases were made in the name of William and that a lawsuit with one of the tenants about rent was instituted in the name of William. But on cross-examination of the witnesses they said that Edward transacted the business and signed William’s name, that he conducted the law .suit and settled it. Defendant also introduced in evidence a deed from William Stevens and wife to John Seaville, September 6, 1881, to three acres of the original 20, also the deed for the right of way to the railroad company mentioned in plaintiffs’ testimony, and a deed from defendants, O. H. Stevens and his wife, Fannie, to Jacob Davis for an undivided two-thirds of O. H. Stevens’s interest in the land in question dated November 3,1902, and a warranty deed two days later in date from Jacob Davis conveying back the same interest to Fannie. The consideration named in the deed from O. H. Stevens and wife to Davis is $3,000, that named in the deed from Davis back to the wife of O. H. is $4,000. The court found all the issues in favor of the plaintiffs and decreed that the lost deed from William Stevens and wife to Edward be restored and that defendants be divested of their record title as heirs of William Stevens, and the plaintiff Ellen, as executrix of the will of Edward, be invested with the same, and that upon the payment to her by the defendant North Kansas City Development Company of $2,784, with six per — 720 — cent interest from March 1st, 1903, plaintiff Ellen execute to that corporation, or to any one whom it may designate for that purpose, a good and sufficient deed, the money to be paid within thirty days on tender by her of such deed and if not then paid plaintiff Ellen is not bound to make a deed and the contract for the sale shall become null and void. Then followed judgment for costs in favor of plaintiffs against defendants except the defendant corporation, and judgment for costs in favor of the corporation against the plaintiffs. I. There are some points made by appellants that we will notice before taking up the case on its merits. It is said that appellants’ cross-bill is ignored in ■the final judgment, that there being no reply to it it j stands confessed. The answer of appellants was filed November 7, 1904, a reply, general denial, was filed November 18, 1904, the cross-bill in February, 1905. The abstract of record says that a demurrer to the cross-bill was filed March 7, 1905, and overruled on same day, the demurrer is not set out in the abstract and we do not know on what grounds it was based, nor does the abstract show that a reply was filed after the demurrer was overruled. But the cross-bill is set out in full in the abstract and if we assume that there was no reply to it and that appellants were entitled to have had its averments taken as confessed, then they ought to have asked the court for an entry of default against the plaintiffs, which they omitted to do. But there are really no statements of facts in the cross-bill upon which any judgment in the appellants’ favor could have been founded. After statements to the effect that the land belonged to William Stevens at his death and ■a statement as to who are his heirs, the cross-bill continues: “The said Fannie D. Stevens further avers that she is a bona-fide purchaser from Jacob Davis of Jackson county, Missouri, by lawful deed of warranty, •and without notice of any adverse claims of any of the — 721 — parties hereto, or that may hereafter be parties to this cause, and that she is a co-owner of said lands.” According to the averments in the cross-bill the title descended to the heirs of William Stevens, yet there is no statement to connect her alleged grantor with that title, and there is no statement that she paid a valuable consideration for the deed. If the demurrer had been based on the ground that the cross-bill did not state facts sufficient to constitute a cause of action it should have been sustained. Under our code pleading a defendant is entitled to but one answer and that one must contain all his matters of defense and counter claim. [See. 604, R. S. 1899; Ann. Stat. 1906, p. 631.] At the time appellants filed this cross-bill they already had an elaborate answer on file in which, after denials and statements in effect showing a one-fifth interest in O. H. Stevens, her husband, as heir of William, it concluded with a denial that plaintiffs’ petition states facts sufficient to justify the divesting of her title to her share of the “land conveyed to her long before the institution of this suit by Jacob Davis by deed, said deed being duly recorded,” etc. That is all that that answer contains bearing on the Davis title. To that answer there was a reply, general denial. The cause went to trial.as if all the issues were joined and was so treated by court and counsel, doubtless construing plaintiffs’ reply as covering the after-filed cross-bill and that was proper. Appellants introduced evidence to sustain their cross-bill, though their evidence fell short. The only evidence they offered was a deed from appellant O. H. Stevens for two-thirds of one-fifth of the land to Davis, and a deed from Davis straightway back to the wife of O. H., for the same interest. There was no- offer to prove that even one cent had been paid for either deed. Even if the cross-bill had stated a case calling for relief, the proof failed to sustain it. The averments of — 722 — the cross-hill were covered in the general finding of the issues in favor of the plaintiff. The court did not err in making no further mention of it in the final decree. II. There is nothing in appellants’point that the suit is not prosecuted in the name of the real party in interest. It is true the North Kansas City Development Company is interested in the decree the plaintiffs are seeking to obtain, but it is also, true that the plaintiffs are interested not only in the balance of the purchase money to be paid on the consummation of the contract of sale, but in the faithful performance by them of the- contract which Edward in his lifetime made and which they in good conscience are bound to fulfill. III. There was a motion to require the plaintiffs to elect upon which of the two counts in their petition they would stand: first, because it did not appear that both causes of action arose out of the same transaction, therefore under section 593, Revised Statutes 1890, could not be united; second, the parties interested in the alleged lost deed are not interested in the sale of Edward Stevens to the North Kansas City Development Company. The court overruled the motion and exception was saved. Although the petition is divided into two counts, yet it may be questioned if it really states but one cause of action; the second count contains all that there is in the first and differs from it only in the fact that it contains the averments concerning the contract for sale to the defendant corporation. But if it be considered two causes of -action they grow out of the same transaction. The second ground of the motion, to-wit, that the defendants other than the corporation are not interested in the matter of the alleged contract of sale by Edward to the corporation, is in the nature of an — 723 — objection for misjoinder of parties and, if there is any merit in it, it ought to have been presented in the way of a special demurrer. [Sec. 598, R. S. 1899; Ann. Stat. 1906, p. 624.] But the plaintiffs were justified under the rules of good pleading in making the defendant corporation a party to this suit. That corporation by virtue of its contract with the plaintiffs * testator and ancestor had an interest in the subject-matter of this suit, and had a right to take part in the litigation to obtain a restitution of the alleged lost deed. There was no independent conflict between the plaintiffs and the defendant corporation, the pleadings of both show that no cause of action had arisen between them, because both were willing as far as they could to carry out the contract made with Edward Stevens in his lifetime. The court did not err in overruling that motion. IV. Appellants contend that the petition does not state facts sufficient to constitute a case of resulting trust. There are three kinds of trusts mentioned by name in the law books, express, implied and resulting. Express trusts are created by agreement between the parties expressing the particular trust intended; implied trusts arise also by agreement, but when the words used in the agreement leave it to implication, rather than express specification,- as to the trusts intended; but resulting trusts are those which arise from the acts of the parties by operation of law. The party to be charged' as trustee may never have agreed to the trust and may have really intended to resist it, yet if his acts have been such as are in honesty and fair dealing consistent only with a purpose to hold the property in trust, a trust will result by operation of law. “They are sometimes called presumptive trusts, because the law presumes them to be intended by the parties from the nature and character of their transactions with each other, although the general foundation of this kind of trusts is the natural equity that arises when — 724 — parties do certain things. Thus, if one pays the purchase money of an estate, and takes the title-deed ip. the name of another, in the absence of all evidence of intention, the law presumes a trust, from the natural equity that he who pays the money for property ought to enjoy the beneficial interest. The Statute of Frauds does not affect the creation of these trusts, for the reason that, where there is no evidence of intention, it would not be expected that a declaration in writing, properly signed, would be made or could be produced.” [Perry on Trusts (5 Ed.), sec. 124.] There are other conditions than the one just suggested where a trust will result by operation of law, one of which is where a person entrusted with money of another buys property and takes title in his own name, but for the purpose of our present inquiry it is sufficient to say, in the language of the text-writer just quoted: “if one pays the purchase money of an estate, and takes the title deed in the name of another, in the absence of all evidence of intention, the law presumes a trust. ’ ’ The petition in this case states facts to constitute a resulting trust under that definition. It is argued that the petition does not undertake to show any reason why Edward Stevens, a lawyer and a man of wealth, should have conducted this transaction in his father’s name. Since both Edward and his father are dead the plaintiffs could not know what the motive was and hence they could neither allege nor prove it. The death of the party in whose name the title is taken does not prevent proof of the casé by parol evidence, though of course it is a fact rendering it necessary for the chancellor to be more careful than otherwise in weighing the evidence. [Perry on Trusts, sec. 138.]. It is also said that the petition does not state that William Stevens in person delivered the alleged lost deed to Edward, or that it was delivered by the hand of any one else by order of William. The petition states — 725 — that William executed and delivered the deed and that is all that was necessary, all in fact that the rules of good pleading permitted, for to go on to specify the manner and form under which the delivery was made would be to plead evidence. The petition was sufficient. V. Appellants’ remaining point relates to the sufficiency of the evidence to sustain the allegations of the petition. There is little for us to say on that point because we think the evidence entirely sustains the chancellor’s findings. Appellants say that a vital allegation in plaintiffs’ petition is that they were in possession of the land when the suit was instituted. There is an allegation of that kind in the petition in connection with other averments going to show continuous possession and acts of ownership by Edward Stevens after the purchase in 1881, but the-averment that the plaintiffs were in actual possession when the suit was begun was not a vital one, because if the averments going to show a condition from which a trust would result by operation of law, and, under that condition, Edward had remained in possession from 1881 to the time of his death in 1902, twenty-one years, it made out the plaintiffs’ case. Besides, the fact on which appellants rely to contradict the averment in the petition that plaintiffs were in possession at the date of filing the suit, does not contradict but really sustains the averment. The fact on which appellants rely is that the defendant corporation was in actual possession at that date. But the corporation was there under license from Edward under the contract for sale, and its possession was the possession of the heirs and devisees of Edward. We agree with the learned counsel for appellant in his estimate of the character of evidence that the law requires to establish a case like the one presented in the plaintiffs ’ petition. This court in every case where — 726 — it has had occasion to speak on the point has held the party asserting such a case to a very high standard of proof, and we have never been satisfied with proof that doe's not measure up to that standard. We think the plaintiffs in this instance have cóme fully up to that standard, and have proven their case beyond a reasonable doubt. The judgment is affirmed. All concur.