declare and establish a resulting trust in said William Smith in 120 acres of land in Linn county, described as follows: The N. of the S. E. 1⁄4 and the N. E. 4 of the S. W. of section 3, township 57, range 19; containing 120 acres, more or less-in favor of the heirs of said Rebecca. The interest of Jackson Fyke in the land remains undiscused. The interest of defendant Meacham is alleged by the petition and admitted by the answer of William Smith to be that of a present purchaser of said real estate, together with an adjoining tract of 120 acres, lying adjacent and south of the land in question, and owned by respondent William, from him, without notice of the said trust or the equities of Rebecca Smith's heirs, under an executory contract of purchase for $8,400, on which Meacham paid $250 as an advance payment--the balance of the purchase money being due on March 1, 1903—and which contract of purchase the said Meacham was entitled to enforce, and by which it is alleged in the petition he obligated himself to pay cue-balf the entire purchase price, or $4,200, for so much of the said real estate as was beld in trust.

The petition is a voluminous pleading, which, in substance and effect, after setting forth the relationship of the parties, and alleging their respective aliquot interests as heirs of Rebecca Smith, avers that Rebecca was the owner in fee of said 120 acres of land; that the legal title at her death and for many years prior thereto was, and still is, in the name of her son William, and that be held the same in trust for the use and benefit of Rebecca, his mother, and since her death in trust for her heirs; that in 1884 Rebecca Smith owned a large amount of money and personal property, and placed $3,500 thereof in the hands of her son William to invest in real estate in Linn county for her use and benefit; that the said William purchased the described real estate with $2,400 of the said money and means of his mother, in pursuance of an understanding with her to that effect, but took the legal title in his own name, and thereafter held it in trust as aforesaid; that William, ever since said purchase, and until the death of his mother, acknowledged and recognized the trust relation; that in 1898 he borrowed $3,000, and secured it by a trust deed covering the said trust estate, as well as the said tract of 120 acres lying immediately south and adjoining the same, and which said borrowed money remains unpaid, and which said trust deed is alive and in force; that the security of said trust deed should be first enforced and exhausted against the 120 acres of land owned by William in fee; that William Smith is insolvent; that the $4,200 to be paid by Meachin for the land held in trust, the premises considered, constitutes a trust fund belonging to, and subject to division between, the heirs of Rebecca Smith; that defendant William refuses longer to recognize the trust relation,

and refuses to account to the other heirs for the proceeds of any part of the said real estate, and threatens to and will convert the same to his own use. The prayer is for a decree that William Smith holds the legal title to said first-mentioned real estate in trust for the use, benefit, and enjoyment of the heirs of Rebecca Smith; that the said heirs be decreed entitled to the proceeds of one-half of the Meacham sale in the propor tion stated in the petition; that $4,200 of the Meacham purchase money should be decreed paid into court for the use and behoof of said heirs, and that upon such payment into court of said trust fund, and the payment by Meacham to William Smith of the share of the purchase money arising from the sale of Smith's own land, the title to all the land be decreed vested in Meacham, and that the share of the purchase money impressed with the said trust be partitioned among the heirs of Rebecca Smith in proportion to their respective interests; and that the $3,000 deed of trust be decreed to be first enforced against William's moiety of the land, or be satisfied out of his share of the proceeds of the Meacham sale.

The separate answer of the defendant William Smith raises the only issues (the other defendants defaulting), and, after admitting the death and intestacy of Rebecca Smith as alleged, it denies she was the owner of the real estate in question, and avers that, had she died seised or possessed of any estate, then the plaintiffs and defendants, together with Oscar Crossland and one

Preston, grandchildren of hers, and entitled as such to certain interests in her estate, would be the heirs at law of Rebecca Smith. The answer then alleges that on the 29th day of May, 1884, the defendant William contracted to purchase of James O. Crandall all the real estate in question, consisting of 240 acres, for the price and sum of $4,800, and received Crandall's title bond for a conveyance to be executed on the 1st day of March, 1885; that, in compliance with said bond, the said Crandall and his wife on the 27th day of November, 1885, executed a general warranty deed to defendant to all said real estate; that Rebecca Smith was possessed of certain money and means acquired out of the estate of her deceased husband, defendant's father, on account of her dower interest in his estate in Illinois, where her husband died. And the answer then proceeds as follows: "That after said defendant purchased said 240 acres of land aforesaid, a part of which is described in plaintiffs' petition, said defendant received from his mother, said Rebecca Smith, her dower money aforesaid, to the amount of $1,500, and that amount only, and which he used in part payment for said 240 acres of land, and that it was agreed between him and his mother that she was to have an interest in said land, the same, and that only, as a dower interest therein, for and during her

natural life, the same as she had owned in her deceased husband's estate in Illinois, in consideration of said money so furnished said defendant, and at her death said right and interest in said land was to absolutely terminate and end. That, by a subsequent arrangement between said defendant and his mother, she, with one of her sons, a brother of said defendant, occupied and used a part of said 240 acres of land for a considerable period of time, and that while they so occupied and used said land, said defendant furnished his mother, upon her request so to do, a large amount of money, stock, and farm supplies, used and consumed by herself and said son, with whom she was then living; amounting in the aggregate to the sum of $1,760, and more. That said defendant also paid out for his mother, with his own money and means, the further amount of $450.45, in the aggregate, after he had received said sum of $1,500 from her. That said defendant's mother and her son with whom she undertook to carry on farming and stock raising for a time on said land made a failure in their said attempt, and lost substantially all his mother had invested in said business, to the amount, and more, as aforesaid; and having made such failure, and having used up and expended largely more money and means furnished by said defendant than the $1,500 he had theretofore obtained from her, she returned to said defendant's home, where she had resided before undertaking said farming business, and thereafter resided with said defendant until her death, and that during said time, after her return to his home, said defendant kept, maintained, cared for, and supported her at his own expense, and entirely out of his own means, and that at her death he had her remains conveyed back to the state of Illinois for interment, and paid all the expenses connected therewith. That when said Rebecca Smith returned to said defendant's home to reside, after her failure in farming, she disclaimed any further interest in said land, or any part thereof, as dower, or any other interest therein, for the reason and because said defendant had fully and entirely paid her back all the money, and largely more, than she had furnished him, as aforesaid, and in further consideration that said defendant would continue to support, maintain, and care for her as aforesaid, and at her death give her remains proper interment at his own expense, and which undertaking said defendant says he faithfully carried out, and in every respect kept and fulfilled." It is next alleged that, at the time Crandall and his wife executed the deed to respondent William, Rebecca Smith was present, knew about the making of said deed, and knew it was made solely and absolutely to him (William), and fully acquiesced therein, and that furthermore Rebecca was present when the defendant William executed a deed of trust on the 240 acres of land for the purpose of

securing $2,500 of borrowed money to complete the payment to Crandall of the original purchase money, and that she interposed no objections to his doing so, but approved the same. After admitting the contract of sale to Meacham at the price and on the advanced payment alleged in the petition, and on the terms stated therein, and that Meacham, on full payment, would be entitled to a deed, the answer denies every allegation of the petition not theretofore specifically admitted to be true.

The reply denied every allegation in the answer setting up new matter, and on issues thus outlined the cause was heard in October, 1902, and the chancellor rendered judgment dismissing plaintiffs' bill, from which judgment plaintiffs, in due form, appeal here.

Was the equitable problem submitted to the chancellor solved correctly? We think not, and this for the following reasons:

There was no proof that Oscar Crossland and Preston were grandchildren and heirs of Rebecca Smith, as alleged in the answer. Nor was there any proof that the estate, if any, of Rebecca Smith in the Crandall land was to follow and be impressed with the limitation on her estate in her deceased husband's land in Illinois, and thus become a dower interest, lapsing at her death, as alleged in the answer; nor was there any satisfactory proof forthcoming supporting the averment in the answer to the effect that at a certain time she disclaimed any further interest in the land in consideration of past support and the undertaking of respondent William to support her in the future, and maintain and care for her until her death, and give her remains proper interment at his own expense, and hence these defenses may be ignored.

At the very threshold of the consideration of the case on review lies the issue of fact as to what money, if any, was turned over by Rebecca Smith to her son William, and by him used in the purchase of the Crandall land, the investigation of which leads us to the state of Illinois, and to the estate of Johnson Smith, there situate; the said Johnson being the ancestor of the plaintiffs and of the defendant William, and the deceased husband of Rebecca. It seems that Johnson Smith died in the state of Illinois, intestate, seised of certain real estate there lying, and leaving a widow, Rebecca, and seven heirs. The statutes of Illinois relating to dower and descents were not introduced in evidence, and in the absence of such proof the "system of unwritten law not evidenced by statutes, but by tradition and the opinions and judgments of the sages of the law" (Riddick v. Walsh, 15 Mo., loc. cit. 556), known as the "common law," must be assumed to be in force there, for divers reasons; e. g., because, prior to our independence, Illinois was a part of the dominions of the King of Great Britain; because it was settled by English-speaking people, who brought all the principles of the

common law applicable to their situation with them, as an inherited birthright; and because Illinois was a part of the Northwestern Territory, and by the provisions of the Ordinance of July 13, 1787, ceding that territory, the common law became the law of the and (Penny v. Little, 4 Ill. [3 Scam.] 301; Flato v. Mulhall, 72 Mo. 525; White v. ChaDey, 20 Mo. App., loc. cit. 396). Assuming, then, the existence of common-law dower in Bebecca Smith, it seems her dower never was formally adjudicated as admeasured and assigned. It seems, furthermore, that several of the heirs of Johnson Smith conveyed to their brother William their several undivided interests in said real estate, and, moreover, that on the 13th day of August, 1884, the respondent William Smith and his wife, together with a sister, Adelaide, and his mother, Rebecca, conveyed the real estate of Johnson Smith to one Harrison. According to the record before us, William Smith had shortly theretofore acquired the interest of his sister Samantha Kent, of his sister Hannah Wilson, and of one other heir, for $650 each. These three interests acquired by purchase, together with his own, by descent cast, he, as said, conveyed by deed in which his mother, Rebecca, and one other sister joined, the consideration being $7,200. Harrison purchased the undivided interest of another heir, Aurelius, for $800. How Harrison acquired the title of the seventh heir, one Jasper Smith, is not shown by the record. But as both parties proceed on the theory that the whole fee passed to Harrison for $8,000, we may assume such to be the fact. Assuming the most favorable theory for William Smith, the result will be that the respective interests of the children, subject to the mother's dower, were valued at $800 each at the date of the conveyance on August 13, 1884, aggregating $5,000; thus leaving for the widow's share $2,400. What property, if any, William possessed, independently of his interest inberited and acquired in said real estate, does not appear with any certainty, and the same may be said of the personal property owned by the widow; but it is testified that she had personal property, and that William had personal property, the character and extent of which may only be guessed at. We infer from the record that the heirs of Johnson Smith were adults, and, this being so, it is but reasonable to conclude from the facts shown that the dower interest of the mother, by some domestic arrangement, was commuted into cash and turned over to her as a resalt of the Harrison sale, and there is evidence that she brought to Missouri so much is $3,000.

William Smith, by answer, admits that $1,500 of this money was turned over to him, and was invested in the Crandall farm. Appellants concede that the condition of the proof is such that there is no satisfactory evidence of more than that sum having been so employed, and in this situation it becomes

material to ascertain, if possible, under what arrangement this money was turned over to William Smith, and so used by him. Appellants contend it was under an understanding that the widow was to pay half of the purchase price of the Crandall farm, and was to have the north 120 acres thereof, on which was a dwelling house, and that William Smith was to pay the other half, and was to own the south 120 acres of the Crandall tract, on which was another dwelling house. Appellants concede that the widow did not pay one-half of the purchase price, but they contend that the investment was made under such circumstances that, to make her own a moiety, the widow should bear the burden of one-half of $1,800, the balance of the purchase price, which was merged into a certain mortgage indebtedness due an insurance company, presently to be considered. On the other hand, respondent contends in his brief in this court (somewhat at variance with his pleading) that, while he received $1,500 from his mother to invest, it was never invested in the land, but was repaid to her by him under circumstances presently to be considered. This brings us to the question of what arrangement existed between William Smith and his mother at the time of this investment, and what were the circumstances surrounding the parties prior to and at the time of the conveyance of the Crandall land, which was made on the 27th day of November, 1885, and made solely to William Smith, as grantee.

As prone to happen in family compacts, when the parties deal with each other loosely under the close and tender confidence of the domestic relation, and not at arm's length and face to face, under the safeguards of correct business form, it becomes a delicate task to reconstruct ancient matters with fidelity and in true perspective when some of the actors are dead; when memory is twisted by self-interest, and conclusions, as wishes father to the thought, usurp the office of facts. Such troubles exist in this case, where grains of fact, as wheat, are hid in bushels of chaff, as conclusions; but we think the record places beyond reasonable doubt the ultimate fact that the aforesaid money of the mother was not taken over by William as a loan, and then repaid, and was not placed with him for investment, and returned to her prior to investment; and this is predicated of the following condition of things:

It appears that in the May preceding the Illinois sale, to wit, in May, 1884, William Smith came to Linn county, Mo., and negotiated the purchase of the Crandall tract for $4,800. Some of the evidence indicates that he agreed to pay $19.50 per acre for 240 acres, amounting to $4,680. Other evidence indicates that he agreed to pay over $5,000. The answer avers the purchase price was $4,800, and the cause is practically submitted to us on both sides of the theory that such is the correct amount. The original

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. interest 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 decisive, 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 useful purpose, we shall not undertake to present here the evidence in detail, but it shows that possibly during the entire year of 1885 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 offset 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 that 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 executed 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 transaction 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

action. At that time William Smith said that his brother Jasper "had done some bad work, and he had to meet that. There was no one else to pay it." The amount thereof was placed by one witness at $350, and the eridence indicates that some of the money borrowed from the insurance company went in that direction. At that same time Mrs. Crandall, who signed the deed with her husband to William Smith, testified: That Rebecca Smith made no objection to making the deed to William, and seemed to favor it; that she heard it read over, and that she said her son William was her main dependece; that Jasper had got away with so auch money that she had to depend upon William, and he was the only son that she could depend upon. We are of the opinion the record bears out the notion that the embarrassments caused by Jasper's conduct changed the original intention of the parties, which possibly was to pay half and half on the land, so that it left of the mother's money only $1,500 therein, and that, as William was assuming the burden of a mortgage indebtedness, and the mother was growing old, the title was placed in him until such time as the mortgage could be paid off and the equities could be adjusted. This view is fortified by evidence to the effect that the mother, at a time afterwards, asked William for a deed, and he gave the mortgage as an excuse for not making one. After the Crandall deed was made, and after Jasper Smith went away, Hannah Wilson, a married daughter of Rebecca Smith, came with her family, and for some time farmed this land with the mother-possibly for a year or more -with indifferent success, and then Hannah moved elsewhere. Thereupon it seems that William Smith assumed control of the whole tract, except five acres, with the dwelling touse, 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 such interest. Subsequently Hannah Wilson returned and lived 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 to the home of William; residing with him, and at intervals with her daughter Hannah, until she died; William caring for her, aided somewhat by Hannah Wilson, and taking her remains to Illinois and burying her there at his own expense. During all these years the evidence shows that William Smith referred to the north 120 acres as his mother's farm 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 one occasion William Smith was consulted by the assessor about the valuation of one 40 acres of it, and gave his estimate of it, knowing that it was being assessed as his mother's, and that he was being consulted as her business man; and that he never claimed the fee till her death. There is further evidence

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 5/16, 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 receive attention. It will be noted that the statute of limitations is not pleaded as a 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 possibly 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