Kelly v. Johnson

Supreme Court of Missouri

Kelly v. Johnson

34 Mo. 400

DecidedMarch 15, 1864

StatusPublished

This text of 34 Mo. 400 (Kelly v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Johnson, 34 Mo. 400 (Mo. 1864).

Pincite

Opinion

Bates, Judge,

delivered the opinion of the court.

This case was heretofore in this court, and is reported in 28 Mo. 249. Then the cause was reversed and remanded because the lower court had decided that the deed from Johnson to Mrs. Graham barred the plaintiff of the relief sought by her petition. The case was tried again in the Land Court upon the same pleadings, and a decree rendered for the plaintiff. At that hearing, evidence was given tending to show that both Johnson and Graham had acted in reference to renting the land as if they were joint proprietors of it; but no evidence was given tending to show that Graham paid any part of the purchase money of the land, or to explain the conditions and terms of any payment made by him, so that the averments contained in the petition and the answer are all that appear upon that subject. Nor was any testimony given tending to show whether the money admitted to have been paid by Graham, was either the separate property of the wife, or a gift to the wife. The evidence given does not tend at all to explain the nature of the trust; for it was not inconsistent with the view of it taken by each of the parties.

The petition states, a payment of money by Graham for the purchase of the land, by which means a trust resulted to him. The answer admits a payment of money, but alleges that the payment was made under the express and distinct verbal understanding and agreement, that Johnson should) hold the land in trust for the sole and separate use of Graham’s wife. Under these circumstances it is immaterial to inquire whether the trust created by the payment of Graham’s [404]*404money for the purchase of the land resulted to him, or whether its direction was changed by the parol declaration of the husband that it should go to the wife ; for, in the latter case, such parol declaration of the husband, if of any validity, could be revoked by him at a subsequent period, and the devise in this case operates as such revocation, and the plaintiff is entitled to the land. The exclusion of Johnson’s deposition did not injure the defendant Mrs. Graham, for its only effect was to establish Mr. Graham’s declarations in her favor, which, as stated above, did not affect the title.

Judgment affirmed.

Judges Bay and Dryden concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Bates, Judge,

delivered the opinion of the court.

This case was heretofore in this court, and is reported in 28 Mo. 249. Then the cause was reversed and remanded because the lower court had decided that the deed from Johnson to Mrs. Graham barred the plaintiff of the relief sought by her petition. The case was tried again in the Land Court upon the same pleadings, and a decree rendered for the plaintiff. At that hearing, evidence was given tending to show that both Johnson and Graham had acted in reference to renting the land as if they were joint proprietors of it; but no evidence was given tending to show that Graham paid any part of the purchase money of the land, or to explain the conditions and terms of any payment made by him, so that the averments contained in the petition and the answer are all that appear upon that subject. Nor was any testimony given tending to show whether the money admitted to have been paid by Graham, was either the separate property of the wife, or a gift to the wife. The evidence given does not tend at all to explain the nature of the trust; for it was not inconsistent with the view of it taken by each of the parties.

The petition states, a payment of money by Graham for the purchase of the land, by which means a trust resulted to him. The answer admits a payment of money, but alleges that the payment was made under the express and distinct verbal understanding and agreement, that Johnson should) hold the land in trust for the sole and separate use of Graham’s wife. Under these circumstances it is immaterial to inquire whether the trust created by the payment of Graham’s [404]*404money for the purchase of the land resulted to him, or whether its direction was changed by the parol declaration of the husband that it should go to the wife ; for, in the latter case, such parol declaration of the husband, if of any validity, could be revoked by him at a subsequent period, and the devise in this case operates as such revocation, and the plaintiff is entitled to the land. The exclusion of Johnson’s deposition did not injure the defendant Mrs. Graham, for its only effect was to establish Mr. Graham’s declarations in her favor, which, as stated above, did not affect the title.

Judgment affirmed.

Judges Bay and Dryden concur.

Cite This Page — Counsel Stack

Bluebook (online)

34 Mo. 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-johnson-mo-1864.

Opinion

Related

Cite This Page — Counsel Stack