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87 STEVENSON v. SMITH. daire and establish a resulting trust in said william Smith in 120 acres of land in

and refuses to account to the other heirs LIO county, described as follows: The N.

for the proceeds of any part of the said real of the S. E. 14 and the N. E. 14 of the S. W.

estate, and threatens to and will convert of section 3, township 57, range 19; con

the same to his own use. The prayer is for Dainis 120 acres, more or less-in favor of

a decree that William Smith holds the legal heirs of said Rebecca. The interest of

title to said first-mentioned real estate in

trust for the use, benefit, and enjoyment of Jacka Fyke in the land remains undis- ! the heirs of Rebecca Smith; that the said eine is alleged by the petition and admitted by The interest of defendant Meacham heirs be decreed entitled to the proceeds of

one-half of the Meacham sale in the propor the answer of William Smith to be that of tion stated in the petition; that $1,200 of the 2 present purchaser of said real estate, to- Meacham purchase money should be decreed iter with an adjoining tract of 120 acres,

paid into court for the use and behoof of ng adjacent and south of the land in ques

said heirs, and that upon such payment into 102 and owned by respondent William, from

court of said trust fund, and the payment him, without notice of the said trust or the

by Meacham to William Smith of the share equities of Rebecca Smith's heirs, under an

of the purchase money arising from the sale EIecutory contract of

purchase for $8,400, of Smith's own land, the title to all the on which Meacham pa id $250 as an advance

land be decreed vested in Meacham, and that parurent--the balance of the purchase money the share of the purchase money impressed being due on March 1, 1903—and which con

with the said trust be partitioned among the tract of purchase the

said Meacham was heirs of Rebecca Smith in proportion to their entitled to enforce, and by which it is alleged

respective interests; and that the $3,000 deed in the petition be obliga ted himself to pay

of trust be decreed to be first enforced coe balf the entire purchase price, or $4,200,

against William's moiety of the land, or be for so much of the said real estate as was

satisfied out of his share of the proceeds of beld in trust.

the Meacham sale. The petition is a voluminous pleading,

The separate answer of the defendant Thich, in substance and effect, after setting

William Smith raises the only issues (the forth the relationship

of the parties, and other defendants defaulting), and, after adalleging their respective

aliquot interests as mitting the death and intestacy of Rebecca Leirs of Rebecca Smith,

a vers that Rebecca Smith as alleged, it denies she was the ownwas the owner in fee

of said 120 acres of er of the real estate in question, and avers land; that the legal title at her death and

that, had she died seised or possessed of for many years prior thereto was, and still

any estate, then the plaintiffs and defend's, in the name of her son William, and that

ants, together with Oscar Crossland and one be held the same in trust for the use and

Preston, grandchildren of hers, and benefit of Rebecca, his mother, and since her

entitled as such to certain interests in her death in trust for her heirs; that in 1881 Re- estate, would be the heirs at law of Rebecca becca Smith owned a large amount of money

Smith. The answer then alleges that on the and personal property, thereof in the hands of her son William to

and placed $3,500 29th day of May, 1884, the defendant William prest in real estate in Linn county for her

contracted to purchase of James O. Crandall

all the real estate in question, consisting of tise and benefit; that the said William pur- 240 acres, for the price and sum of $4,800, chased the described real estate with $2,400 and received Crandall's title bond for a conof the said money and means of his mother, in pursuance of an

veyance to be executed on the 1st day of to that effect, but took the legal title in his understanding with her March, 1885; that, in compliance with said

bond, the said Crandall and his wife on the OFD name, and therea fter held it in trust | 27th day of November, 1885, executed a genas aforesaid; that William, ever since said eral warranty deed to defendant to all said purchase, and until the death of his mother, real estate; that Rebecca Smith was possessacknowledged and recognized the trust rela- | ed of certain money and means acquired out secured it by a trust deed covering the said be borrowed $3,000, and of the estate of her deceased husband, de

fendant's father, on account of her dower acres lying immediately south and adjoining husband died. trust estate, as well as the said tract of 120 interest in his estate in Illinois, where her

And the answer then prosaid borrowed money ceeds as follows: "That after said defendis alive and in force; that the security of said wybich said trust deed ant purchased said 240 acres of land afore

said, a part of which is described in plainhausted against the 120 acres of land owned

first enforced and ex- tiffs' petition, said defendant received from by William in fee; that William Smith is in

his mother, said Rebecca Smith, her dower solvent; that the $4,200 to be paid by Meach

money aforesaid, to the amount of $1,500,

and that amount only, and which he used in considered, constitutes a trust fund belonging

in trust, the premises part payment for said 240 acres of land, and to, and subject to division between, the heirs

that it was agreed between him and his Rebecca Smith; that defendant William

mother that she was to have an interest in tefuses longer to recognize the trust relation,

said land, the same, and that only, as a dower interest therein, for and during her

don; that in 1898

the same, and which remains unpaid, and

trust deed should

be

10 for the land held

natural life, the same as she bad owned in securing $2,500 of borrowed money to comher deceased husband's estate in Illinois, in plete the payment to Crandall of the original consideration of said money so furnished purchase money, and that she interposed no said defendant, and at her death said right | objections to his doing so, but approved the and interest in said land was to absolutely same. After admitting the contract of sale terminate and end. That, by a subsequent to Meacham at the price and on the advanced arrangement between said defendant and his payment alleged in the petition, and on the mother, she, with one of her sons, a brother terms stated therein, and that Meacham, on of said defendant, occupied and used a part full payment, would be entitled to a deed, of said 240 acres of land for a considerable the answer denies every allegation of the period of time, and that while they so occu- petition not theretofore specifically admitted pied and used said land, said defendant fur- to be true. nished his mother, upon her request so to do, The reply denied every allegation in the a large amount of money, stock, and farm answer setting up new matter, and on issues supplies, used and consumed by herself and thus outlined the cause was heard in October, said son, with whom she was then living; 1902, and the chancellor rendered judgment amounting in the aggregate to the sum of dismissing plaintiffs' bill, from which judge $1,760, and more. That said defendant also ment plaintiffs, in due form, appeal here. paid out for his mother, with his own money Was the equitable problem submitted to and means, the further amount of $450.45, in the chancellor solved correctly? We think the aggregate, after he had received said sum not, and this for the following reasons: of $1,500 from her. That said defendant's There was no proof that Oscar Crossland mother and her son with whom she under- and - Preston were grandchildren and took to carry on farming and stock raising heirs of Rebecca Smith, as alleged in the anfor a time on said land made a failure in swer. Nor was there any proof that the estheir said attempt, and lost substantially tate, if any, of Rebecca Smith in the Cranall his mother had invested in said business, dall land was to follow and be impressed with to the amount, and more, as aforesaid; and the limitation on her estate in her deceased having made such failure, and having used husband's land in Illinois, and thus become a up and expended largely more money and dower interest, lapsing at her death, as almeans furnished by said defendant than the leged in the answer ; nor was there any sat$1,500 he had theretofore obtained from her, isfactory proof forthcoming supporting the she returned to said defendant's home, where averment in the answer to the effect that at she had resided before undertaking said a certain time she disclaimed any further infarming business, and thereafter resided with terest in the land in consideration of past said defendant until her death, and that support and the undertaking of respondent during said time, after her return to his William to support her in the future, and home, said defendant kept, maintained, cared maintain and care for her until her death, for, and supported her at his own expense, and give her remains proper interment at his and entirely out of his own means, and that own expense, and hence these defenses may at her death he had her remains conveyed be ignored. back to the state of Illinois for interment, At the very threshold of the consideration and paid all the expenses connected there- of the case on review lies the issue of fact with. That when said Rebecca Smith re- as to what money, if any, was turned over turned to said defendant's home to reside, by Rebecca Smith to her son William, and by after her failure in farming, she disclaimed him used in the purchase of the Crandall any further interest in said land, or any land, the investigation of which leads us to part thereof, as dower, or any other interest the state of Illinois, and to the estate of therein, for the reason and because said de- Johnson Smith, there situate; the said Johnfendant had fully and entirely paid her back son being the ancestor of the plaintiffs and all the money, and largely more, than she of the defendant William, and the deceased had furnished him, as aforesaid, and in husband of Rebecca. It seems that Johnson further consideration that said defendant Smith died in the state of Illinois, intestate, would continue to support, maintain, and seised of certain real estate there lying, and care for her as aforesaid, and at her death leaving a widow, Rebecca, and seven heirs. give her remains proper interment at his The statutes of Illinois relating to dower and own expense, and which undertaking said descents were not introduced in evidence, and defendant says he faithfully carried out, and in the absence of such proof the "system of in every respect kept and fulfilled.” It is unwritten law not evidenced by statutes, but next alleged that, at the time Crandall and by tradition and the opinions and judgments his wife executed the deed to respondent Wil- of the sages of the law" (Riddick v. Walsh, liam, Rebecca Smith was present, knew 15 Mo., loc. cit. 556), known as the "common about the making of said deed, and knew it law," must be assumed to be in force there, was made solely and absolutely to him (Wil- for divers reasons; e. g., because, prior to liam), and fully acquiesced therein, and that our independence, Illinois was a part of the furthermore Rebecca was present when the dominions of the King of Great Britain; bedefendant William executed a deed of trust cause it was settled by English-speaking peoon the 240 acres of land for the purpose of ple, who brought all the principles of the

· 89 STEVENSON v. SMITH. with them, as an inherited birthright; and

COILOD applicable to their situation material to ascertain, if possible, under what baise Illinois was a part of the Northwest

arrangement this money was turned over to ETD Territory, and by the provisions of the

William Smith, and so used by him. Appelürdinance of July 13, 1787, ceding that ter

lants contend it was under an understanding ritury, the common law became the law of the

that the widow was to pay half of the pur

chase price of the Crandall farm, and was to 3d (Penny P. Little. 4 Ill. [3 Scam.] 301 ; | have the north 120 acres thereof, on which Fato . Mulball, 72 Mo. 525; White v. Cha- was LET, 20 Jo. App., loc. cit. 396). Assuming,

a dwelling house, and that William

Smith was to pay the other half, and was to 12D, the existence of common-law dower in Data Smith, it seems her dower never was

own the south 120 acres of the Crandall

tract, on which was another dwelling house. Surnally adjudicated as admeasured and as- Appellants concede that the widow did not ded. It seems, furthermore, that several

pay one-half of the purchase price, but they of tbe beirs of Jobnson Smith conveyed to

contend that the investment was made under their brother William their several undivided

such circumstances that, to make her own a Inzerests in said real estate, and, moreover,

moiety, the widow should bear the burden of that on the 13th day of August, 1884, the re

one-half of $1,800, the balance of the purchase socdent William Smith

and his wife, to- price, which was merged into a certain mortgether with a sister, Adelaide, and his moth

gage indebtedness due an insurance company,

On the other ET. Rebecca, conveyed the real estate of John presently to be considered. sob Smith to one Harrison. According to the

hand, respondent contends in his brief in this record before us, William Smith bad shortly

court (somewhat at variance with his pleadtheretofore acquired the interest of his sister

ing) that, while he received $1,500 from his Samantba Kent, of bis sister Hannah Wilson,

mother to invest, it was never invested in the and of one other beir, for $650 each. These

land, but was repaid to her by him under three interests acquired by purchase, togeth

circumstances presently to be considered. er with his own, by descent cast, he, as said,

This brings us to the question of what arccareyed by deed in which his mother, Re

rangement existed between William Smith tena, and one other sister joined, the consid

and his mother at the time of this investeration being $7,200. Harrison purchased the

ment, and what were the circumstances surfor $800. How Harrison acquired the title of and sided interest of another heir, Aurelius, rounding the parties prior to and at the time

of the conveyance of the Crandall land, which the seventh beir, one

Jasper Smith, is not was made on the 27th day of November, 1885, sbown by the record.

But as both parties and made solely to William Smith, as granproceed on the theory

that the whole fee tee. passed to Harrison for

$8,000, we may as- As prone to happen in family compacts, sude such to be the

Assuming the when the parties deal with each other loosely Dost favorable theory for William Smith, the under the close and tender confidence of the result will be that the respective interests domestic relation, and not at arm's length of the children, subject to the mother's dow- and face to face, under the safeguards of corer, were valued at $800 each at the date of rect business form, it becomes a delicate task the conrerance on August 13, 1884, aggre

to reconstruct ancient matters with fidelity stare 82,400. What property, if any, William 2ting $5.000; tbus leaving for the widow's and in true perspective when some of the

actors are dead; when memory is twisted by berited and acquired in said real estate, does

ossessed, independently of his interest in- self-interest, and conclusions, as wishes fanot appear with any certainty, and the same

ther to the thought, usurp the office of facts.

Such troubles exist in this case, where grains may be said of the personal property owned by the widow; but it is testified that she had

of fact, as wheat, are hid in bushels of chaff,

as conclusions; but we think the record personal property, and that William bad persobal property, the character and extent of

places beyond reasonable doubt the ultimate

fact that the aforesaid money of the mother guessed at. We infer was not taken over by William as a loan,

the heirs of Johnson and then repaid, and was not placed with

and, this being so, it is him for investment, and returned to her prior stown that the dower interest of the mother,

conclude from the facts to investment; and this is predicated of the by some domestic arrangement, was 'conimut

following condition of things: ed into cash and turned over to her as a re

It appears that in the May preceding the

Illinois sale, to wit, in May, 1884, William dence that she brought to Missouri so much sale, and there is evi- Smith came to Linn county, Mo., and nego

tiated the purchase of the Crandall tract for

$4,800. Some of the evidence indicates that answer, admits that $1,- he agreed to pay $19.50 per acre for 240 and Fas invested in the Crandall farm, Apwas turned over to him,

acres, amounting to $4,680. Other evidence zoof is such that there is no satisfactory

indicates that he agreed to pay over $5,000. epidence of more than that sum having been

the condition of the The answer avers the purchase price was so employed, and in this situation it becomes

$4,800, and the cause is practically submitted to us on both sides of the theory that

The original such is the correct amount.

fact.

which may only be from the record that Snitb were adults, bat reasonable to

sult of the Harrison

Us $3.000.

William Smith, by m of this money

feilants concede that

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contract of purchase, if one were entered into, is not in evidence; but a bond was executed by Crandall on the 29th day of May, 1884, and it is not uninstructive to give heed to its recitals, which are, inter alia, that the real estate was to be conveyed to William Smith on the 1st day of March, 1885; that the sum of $4,350 remained due on the purchase price (the bond being silent as to the advance payment); that this balance was evidenced by two potes—one for $2,550, and due on or be. fore October, 1884, and one for $1,800, due in five years from date, with 8 per cent. in. terest from March 1, 1885; and said bond was conditioned on the conveyance by Crandall to William Smith of the whole tract of 240 acres on said 1st day of March, 1885, when the balance then due Crandall was to be secured by a deed of trust or mortgage.

There is a controversy as to the ownership of the money, conceded to be $450, paid Crandall as an advance payment, and ingenious speculation is indulged in, pro and con, anent that ownership. A priori reasoning would seem to result in the conclusion that it is more likely to have been a payment out of a common fund than otherwise, but we consider the question more curious than de. cisive, and therefore discard its consideration, further than to say that in our opiniou the onus was on appellants to show that the mother participated in this payment, and that they failed to carry that burden satisfactorily to the legal mind.

The precise time that William and Rebecca Smith and their respective families entered into possession of this land is not disclosed, but by reasonable inferences, fairly to be deduced from proved facts, it may be arrived at that either in the fall of 1884, or in the early winter or spring of 1885, Rebecca Smith and her son Jasper took possession of the north 120 acres, and William Smith and his family took possession of the south 120 acres, moved into the dwelling houses thereon, and supplied themselves with the necessary implements of husbandry, provisions, and stock incident to carrying on farming operations independently of each other. Serving no use. ful purpose, we shall not undertake to present here the evidence in detail, but it shows that possibly during the entire year of 188.7 Jasper Smith and his mother farmed the 120 acres they took possession of, and it seems that Jasper fell into trouble, executed chattel mortgages on the personal property of his mother, and otherwise involved her as well as his brother William in financial embarrassment, and, having done so, left the country toward the end of 1885 or the commencement of 1886. His irregular dealings caused substantially all of his mother's stock and farming implements to be subsequently swept away under mortgages, and not only so, but William paid other debts for him—we infer, unsecured ones. The construction we place on the record before us is that it is the contention of respondent that his payments of

Jasper's debts created a present indebtedness of the mother to him, and that thereby, and before the Crandall conveyance was executed, all the money furnished by Rebecca Smith towards the purchase of the farm was oteset or repaid to her, so that, in consequence thereof, when Crandall made his conveyance, it was made to William as grantee because Rebecca had lost all interest in the matter. But we cannot persuade ourselves to accept this view of the testimony. In the first place, the contention is in the nature of a confession and avoidance, and the laboring oar was held by respondent. In the second place, the evidence is not satisfactory that payments made on behalf of Jasper were made prior to the making of the Crandall conveyance. In the third place, the record does not satisfy us that all the payments made by William Smith on behalf of his brother Jasper were made under such circumstances as created a legal liability upon the mother to refund the money so paid by William; nor is there evidence tbat the mother legally bound herself to repay such sums to William, or that the adjustment of Jasper's affairs, to sustain the family honor, had the effect of wiping out the entire estate of the mother. To the contrary, there is evidence persuading us that William Smith was somewhat involved by Jasper's inadvertences on his own personal behalf, and that the entire burden thereof ought not to be shifted to and rest upon the shoulders of the mother. In the fourth place, the Crandall conveyance was not made on the 1st of March, 1885, as nominated in the bond, but, as said, was erecuted on November 27, 1885. There is no testimony before us as to when the $2,500 note mentioned in the bond was paid, but there is testimony that, as part of the arrangement for the Crandall conveyance, a $2,500 loan was negotiated with the Mutual Benefit Life Insurance Company of Newark, N. J., evidenced by notes and coupons executed alone by William Smith, and secured by a deed of trust to one Toms, trustee, on the whole Crandall tract, and that, out of the money so procured, $1,800 or $1,900, the remainder of the purchase money, was paid to Crandall, and the tranşaction with him closed by his conveying directly to William Smith. The mother was present at this conveyance and at the execution of this trust deed, and therefore knew the whole title passed to her son William, and that his credit and the land were alone pledged for the insurance company's loans. But we do not attribute to the transfer to William, instead of to the mother and William, and to her knowledge of that fact, the radical significance attached by respondent. Respondent contends that the foregoing facts indicate that his mother had lost all interest in the land. But the very fact that the mother was present and had these matters explained to her is evidence that she had, or was thought to have, a material interest in the trans

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STEVENSON v. SMITH.

91

2. D.

At that time William Smith said
i kis brother Jasper "had done some bad

S and be bad to meet that. There was
9 oge else to pay it." The amount thereof
SES placed by one witness at $350, and the
eridezie indicates that some of the money
ITu6d from the insurance company went

that direction. At that same time Mrs. Grindall, who signed the deed with her hushard to William Smith, testified: That Re

ya Smith made no objection to making the in to Tilliam, and seemed to favor it; hat sbe heard it read over, and that she sid ber son Filliam

was her main dependEle; that Jasper had got away with so 20h money that she

had to depend upon Wiliam, and he was

the only son that she e depend upon. We are of the opinion the record bears out the notion that the em. barrassments caused chaczed the original intention of the parties, sieb possibly was to pay half and half on the iand, so that it left of the mother's mones only $1,500 therein, and that, as William $95 assuming the burden of a mortgage indebtainess, and the mother was growing old, the title was placed in him until such time as the mortgage could equities could be adjusted. fortified by evidence to Láither, at a time afterwards, asked William for a deed, and he gave the mortgage as an excuse for not making

one. dall deed was made, and after Jasper Smith sert away, Hannab

Wilson, a daughter of Rebecca Smith, came with her family, and for some time farmed this land with the mother-possibly for a year or more

Thereupon it seems that

by Jasper's conduct

be paid off and the

This view is the effect that the

he to

After the Cran

that commencing prior to the Crandall purchase, and continuing down to the end, except for a short time while Jasper was on the farm, William was his mother's business man, managing agent, and confidential adviser. The record shows that at another time she asked William Smith for a deed, and he again excused himself by claiming that some boy had carried away his papers.

Rebutting the showing made by appellants is evidence from the sons and daughters of respondent to the effect their grandmother, on returning to their father's home, frequently referred to herself as “broken up." But we are inclined to the notion that these expressions, taken with all the surrounding facts and circumstances, were rather indicative of the emotions of an old lady who had fallen on evil and reminiscent days, rather than as assertions of a settled business fact. And to sum up, in our opinion the record strongly preponderates in favor of the contention of appellants that Rebecca Smith had, and died with, an interest in the land corresponding to the amount of her payment of $1,500 on its purchase. This being So, we do not think the state of proof and the equities of all parties require us to hold that the heirs of Rebecca Smith are entitled to one-half the real estate, or the north half, and that their interests therein should be impressed with the amount of one-half of the $1,800 or $1,900 paid out of the insurance loan, as contended by appellants; but we think the very right of the case will be more justly attained in disentangling the complications by giving the heirs such proportion of the land as $1,500 bears to $4,800, i, e., 15/48 or 8/18, but this should be free of all mortgage liens. And this holding is abundantly warranted by the adjudicated cases (see authorities cited in the respective briefs of counsel), which authorities announce the doctrine, neatly formulated by appellants' counsel, that, “where land is purchased by one in his own name with the money of another, a resulting trust is created by implication of law, which follows the ownership of the money. And where a part only of the purchase money is furnished by the beneficiary, the trust is for a proportionate share of the land bought."

The foregoing view leaves out of account respondent's contention of laches, urged here as a justification of the finding of the chancellor nisi, which contention will now ceive attention. It will be noted that the statute of limitations is not pleaded as defense. Evidently the learned counsel for respondent deemed such defense not applicable to the facts of the case, and therefore did not plead the statute, as is necessary, if relied on as a defense, in possi',ly all cases except ejectment suits. Neither does the answer plead laches or staleness as a defense. On this score it may be said that while it has been held that it is necessary to plead laches, in order to invoke it as a

married

returned and lived

-rith indifferent success, and then Hannah moved elsewhere. William Smith assumed control of the whole tract, except five acres, with the dwelling torse, and used the farm to pay the accruing mortgage interest;

and there is evidence to the effect that its use did not more than pay soch interest. Subsequently Hannah Wilson

With her mother for a series of years on the five acres referred to, and finally, within a few years of her death, when broken with old age, the mother went and at intervals with her daughter Hannah, to the home of William; residing with him, somewhat by Hannah Wilson, and taking

til she died; William caring for her, aided ber remains to Illinois and burying her there

During all these years ferred to the north 120 acres as his mother's

that William Smith refarin and as his mother's place, and that she, in his presence, spoke of it as her farm; that It was assessed in her name; that at least on mae occasion William Smith was consulted by arres of it, and save his estimate of it, know

the valuation of one 40 pers, and that he was being consulted as her og that it was being assessed as his mothbusiness man; and that he never claimed the

There is further evidence

at his own expense. the evidence shows

re

a

the assessor about

free till her death.

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