author: LAMM, J.

text:
    A. B. MEDLIN et al. v. KATIE E. MORRIS, Appellant.
    Division One,
    May 31, 1912.
    1.HUSBAND AND WIFE: Property Purchased with His Money Conveyed to Her: Resulting Trust. A suit by the husband to divest his wife of the title to property bought with his money and conveyed by the vendor to her, and to have the title vested in the husband, is not a case of an express trust, nor one where a trust arises ex maleficio, nor does it come within any of the bounds1 or definition of an implied trust where the question is between the original parties to the transaction.
    2. -: -: To Avoid Future Creditors. A husband who invests his money in real estate in the name of his wife to avoid the hazard of business obligations and future executions, cannot, when they quarrel and separate, successfully maintain, a suit in equity to have the title divested out of her and vested in him.
    3. -: Property Bought by Savings Out of Allowances. A court of equity will not take from the wife and vest in the husband property bought by her with the savings of money given to her by him as a gift to pay the family expenses, and through frugality and rigid economy saved by her, though in after years they quarreled and separated. He cannot, by afterthought, change the character of such a gift or marital advancement.
    4. -: Resulting Trust: Character of Proof. To divest out of a wife and put into her husband the title to real estate solemnly evidenced by. deeds taken by the consent of both in the name of the wife ahd long acquiesced in, demands high and stringent proof to establish a resulting trust in his favor. To prove such trust there must be evidence clear, cogent and altogether convincing, so that the chancellor can say on his , very conscience that an implied trust in his favor exists beyond any serious doubt.

      Appeal from Buchanan Circuit Court. — Mon. L. J. Eastin, Judge.
    Reversed and remanded (with directions).

      James W. Boyd for appellant.
    (1) The decree of the circuit court is not sustained by the evidence, is against the evidence and the weight of the evidence. (2) This case is here to be tried, if at all, upon the evidence before the court, and not upon a review of errors. It is to be tried de novo, according to the decisions of this eourt heretofore rendered in such cases. Miller v. McCaleb, 208 Mo. 562; Walther v. Null, 233 Mo. 110; Creamer v. Bivert, 214 Mo. 413; Chambers v. Chambers, 227 Mo. 262. This court, in equity cases, does not defer much to the opinion of the circuit court. Chambers v. Chambers, 227 Mo. 287. The circuit court, as a preamble to the decree stated what purports to be some of the facts in the case. This statement as to any material facts in the case, is not sustained by the evidence. A finding of fact has no place in a court of equity, and can have no influence on this court, which is to try the case upon the evidence introduced. Miller.v. McCaleb, 208 Mo. 572; Walther v. Null, 233 Mo. 110. (3¡) As the respondent’s case is based upon a pretended oral agreement, his evidence and all the testimony introduced by him does not tend to prove any cause of action in that respect and no trust in real estate can be created by oral testimony. R. S. 1909, secs. 2868-9; Crowley v. Crafton, 193 Mo. 431; Richardson v. Champion, 143 Mo. 538; Hillman v. Allen, 145 Mo. 638; Curd v. Brown, 148 Mo. 82. (4) It is not certain whether the petition bases the respondent’s alleged right of recovery on an express trust or not. There is no evidence in the case sufficient to prove any trust. It is true that the respondent in his testimony claims that in 1892 he was sued. The suit “seared” him, and after he got out of that, and the suit was thrown out of court, he says he concluded to turn over his home to his wife so that his future creditors could not take it away from him. Tie owned no lot then. This is the only oral arrangement which he claims to have made. He further testified: “Q. If you should escape a liability, then you wanted it for you and her? A. Yes, sir; that is the idea; yes, sir.” He says th&t he and his wife both helped to make that money, and that what he said to his wife was to avoid future liability. A man cannot put his property out of his hands and have it conveyed to a third person in order to avoid present or future debts or financial liability, and then get a chancellor to get it back for him. Such a transaction is fraudulent, admitted to be fraudulent, and therefore no court of equity would assist him in enforcing his fraudulent, illegal and unjust agreement. The respondent in his testimony does not say, or pretend to say, that his wife ever entered into any such agreement, or ever said anything on the subject. Even according to his own testimony, she never entered into any such agreement with him. At least, he does not testify that she ever did enter into any agreement. Of course, he does not pretend to say what the agreement was so far as she was concerned. Green v. Cates, 72 Mo. 123; Sells v. West, 125 Mo. 630; Creamer v. Bivert, 214 Mo. 485; McNear v. Williamson, 166 Mo. 365; Chambers v. Chambers, 227 Mo. 286; Henderson v. Henderson, 13 Mo. 151; Ober v. Howard, 11 Mo. 425. (5) In a suit in equity to set aside a deed, the plaintiff asking such relief must prove his alleged cause of action by testimony so clear, express, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. Reed v. Sperry, 193 Mo. 173; Curd v. Brown, 148 Mo. 92; Crawford v. Jones, 163 Mo. 583; Brinkman v. Sunken, 174 Mo. 7091; Johnson v. Quarles, 46 Mo. 423; Adams v. Burns, 96 Mo. 361; Allen v. Logan, 96 Mo. 591; Burdett v. May, 100 Mo. 13; King v. Isley, 116 Mo. 155; McFarland v. LaForce, 119' Mo. 585; Plumb v. Cooper, 121 Mo. 668. (6) If be furnished any part of said money, the prima facie presumption is that he gave that money or the proceeds to his wife, and that he intended it as a purchase for her. Curd v. Brown, 148 Mo. 92 - Woodward v. Woodward, 148, Mo. 246; Alexander v. Warrance, 17 Mo. 228; Gilliland v. Gilliland, 96 Mo. 522; Schuster v. Schuster, 93 Mo. 438; Kinzey v. Kinzey, 115 Mo. 496.

      John E. Dolman for respondents.
    (1) The trust sought to be enforced in this case is an implied or resulting trust arising out of “an agreement not made by one owning and having the legal title to real estate by which an express trust was attempted to be created, but it was an agreement prior to the vesting of title, an agreement which became a part of and controlled the conveyance, and evidence of its terms is offered not for the purpose of establishing an express trust, but of nullifying the presumption of an advancement and to indicate the disposition which the real owner intended should be made of the property.” Institution v. Meech, 1691 U. S. 409; Freeman v. Freeman, 153 Fed. 387. All of the property in controversy in this ease was acquired subsequent to the agreement between the parties and in accordance with that agreement and by virtue of which the conveyance was made to the wife in each instance. Condit v. Maxwell, 142 Mo. 266'. It is the collateral agreement prior to the payment of the purchase money, coupled with the ownership of the purchase money and the acts of the parties that determines the character of the trust. Shaw v. Shaw, 86 Mo. 594; McMurray v. McMurray, 180 Mo. 526. The proposition of law is undoubtedly true that the presumption of a resulting trust in favor of the purchaser is rebutted,, in case the conveyance is made to one to whom he is under some moral or legal obligation, as wife or child, but “this rebutter of the presumption of a resulting trust, arising from the relation of the parties to each other, will itself'be overcome when all the facts and circumstances antecedent to or contemporaneous with the transaction point clearly to an intention on the part of the purchaser to create a trust.” Whether this conveyance carried with it a resulting trust depended altogether upon the defendant when he bought the land, paid the purchase money and directed the name of plaintiff to be inserted in the deed as grantee.” Hall v. Hall, 107 Mo. 109; Richardson v. Champion, 143 Mo. 538; Butler v. Carpenter, 163 Mo. 597; Crawford v. Jones, 163 Mo. 577; Cray v. Jordan, 87 Me. 140; Williams v. Wagner, 64 Yt. 326; Bibb v. Huter, 79 Ala. 351; Keller v. Keller, 45 Md. 269'; Cilchrist v. Brown, 165 Pa. St. 282; Lorensbuhy v. Purdy, 16 Barb. (N. Y.) 376; Avery v. Stewart, 136 N. C. 426. (2) Such an agreement must be proven by such clear and convincing evidence as to leave no reasonable doubt in the mind of the chancellor of its existence. Where, however, the question of the veracity of the principal witness is in doubt, and which must be judged very largely by her manner on the stand and her various contradictory statements, her falsehoods, if any, and all the circumstances attending the giving of her testimony, the chancellor who sees it all is the better judge, and this court should defer entirely to the finding of facts by the chancellor, if the evidence discloses the fact that this element entered into such finding, especially where her testimony is uncorroborated. Where any finding of fact in an equity case depends on the credibility of oral testimony the reviewing court should be .satisfied that the finding is against the preponderance of the evidence before reversing it. Short v. Taylor, 137 Mo. 525; Trust Co. v. Browne, 177 Mo. 424; Creamer v. Bivert, 214 Mo. 479. (3¡) Appellant makes the further point that the agreement or arrangement was void because made for the purpose of delaying, hindering or defrauding creditors and therefore equity will not relieve him of the position in which he has placed himself. There is no evidence that he had any creditors at the time the agreement was made. His only property consisted of a little four-room house, which he' called his home. He wanted to save that. He never knew whether he would ever have anything else or not, and when he got out of his liability to an injured employed he concluded to turn this home over to his wife, so that if another accident happened that home could not be taken away from him. “That was the beginning of that arrangement. ” He did not know that the law guaranteed him a home and that his statutory exemption amounted to more than his little home amounted to. That was only the beginning of an arrangement, the inducement to enter into an arrangement, that was thereafter acted upon and carried out for fifteen years. The beginning of the arrangement was brought about by a fear that another accident might deprive him of his home. A conveyance to wife of a homestead can in no sense hinder, delay or defraud the creditors. Reed v. Nicholson, 189 Mo. 396. Even though it could be said that the arrangement between the parties hereto had its inception in a fraudulent conveyance, it is valid as between the. parties thereto. Jacobs v. Smith, 89 Mo. 673. And defendant herein cannot allege its illegality for the purpose of avoiding it. McLaughlin v. McLaughlin, 16 Mo. 242; Hall v. Callahan, 66 Mo. 316; Thomas v. Thomas, 107 Mo. 459. If the arrangement in question was made for the purpose of defrauding future creditors none but the creditors themselves and those in privy with them can avoid it. McLaughlin v. McLaughlin, 16 Mo. 242. And if this action were by a creditor and the arrangement were held to be in fraud of him the court would simply hold that there was a resulting trust in the plaintiff for the benefit of snch creditor. Herring-ton v. Herrington, 27 Mo. 560.
   LAMM, J.

James N. and Katie E. Morris were baron and femme. In 1908 said baron sued his femme in equity in the circuit court of Buchanan. The object and general nature of the bill was to declare a resulting trust in his favor in certain real properties, to divest title out of his wife and vest it into himself, and (in aid of the suit) to have a receiver appointed pendente lite to take charge, collect rents, insurance losses, pay taxes and make repairs. By amendment to the bill a certain policy on the life of plaintiff for the benefit of defendant, issued by the New Tork Life Insurance Company for $1000, was brought into the case as part of the subject-matter of the litigation. The said properties are described as follows: Lot 4 in block 15, Wyatt Park; lots 10, 11, 12 and 13, in block 137, South St. Joseph Addition; and lot's 1 and 2 in block 15 in the same addition — all situate in the city of St. Joseph. There was a decree for plaintiff for all parcels except the last, to-wit, the two lots in block 15 in South St. Joseph Addition. The title to the latter was quieted in defendant. It was also decreed that defendant turn over said policy. By an intermediate order a receiver was appointed who seems to have made final settlement and received acquittance.

On due and timely steps, defendant appealed, giving a supersedeas bond.

After jurisdiction was lodged here, plaintiff died and A. B. Medlin, public administrator of Carroll county, in charge of his estate, and Mary S. Meister (a married daughter) the sole surviving child of the Morrises were substituted as plaintiffs and the cause stands revived in .their names by stipulation. Throughout this case, however, for convenience sake we will speak of Mr. Morris as plaintiff.

The gist of the bill is that on sundry given dates between 1892 and 1907 plaintiff purchased with his own means each of several tracts described, and caused title thereto to be put in defendant, his wife, to be held by her in trust for him and to his use and benefit. That title to some of the lots mentioned was acquired by defendant by an exchange of properties so held in trust. That thereafter, at a certain time in 1907, without cause, defendant left plaintiff and went to her own people in St. Joseph, thenceon refusing to live with him, repudiating the trust aforesaid and now claiming to own said real estate in her own right. We quote a part of the bill: “Plaintiff further states that at the time said conveyances and each of them were made there was a clear, express and unequivocal agreement between plaintiff and defendant that the title to said property should not be held by her in any other manner or in any other capacity .than as the trustee for plaintiff, and that since.the making of said conveyances and each of them and during all the times hereinbefore mentioned and until defendant left plaintiff and refused longer to live with him, the said defendant has recognized, admitted and acquiesced in said trust agreement; that all the money invested in said property and in all the improvements thereon was furnished by plaintiff and that defendant never invested a dollar of her own money therein and never had any money of her own to invest therein.”

The answer joined issue on those allegations, admitting, however, that she held title.

The record is long and much of the testimony is in such conflict as to make the task of reconciling it a hopeless one. So, the discourse of some of the witnesses flies so high it cannot be followed without precaution against danger of disturbing judicial calmness. For instance, we are sorry it justly deserves such observations as these: If we believed everything testified to on both sides, by narration and suggestion, plaintiff would be a good husband, an industrious, so-' ber, successful mechanic and contractor, who never drank “to do any harm,” who always made good wages and fair profits and who made it a rule to turn all he made over to his wife from the date of their marriage in 1880 down to their separation in 1907. Contra, and by the selfsame token, plaintiff would be an unsuccessful saloon keeper at the outset, then a mechanic generally running behind on his contracts, who made little above the expenses of his family, a frequenter of saloons nightly, a man who got drunk and into fights (in one of which the combatants rolled into the creek), who spent his substance in “gambling hells” and riotous living, and was an altogether indifferent husband. So, we would believe that defendant got her property start solely by an out-and-out gift of her father and mother, the 0’Roukes, who were people of means and who often assisted her with money when she needed help. By the same token we would believe that the 0 ’Roukes lived in a shanty, from hand to mouth, had no means to speak of and while they made small loans to the Morrises that were repaid, yet they never gave Mrs. Morris anything whatever as a gift or advancement. Again., we would believe that Mrs. Morris was assaulted and beaten “black and blue” by plaintiff’s fists and that she left his home because of such unprovoked savagery. By the same token we would believe, contra, that she got (to use the words of Mr. Morris) “whooping drunk,” was making a spectacle of herself in the house yard, and when in that pickle he left off reading his evening newspaper and with manly gentleness was trying to take her into the house to hide her shame, which polite but firm conjugal thoughtfulness she resented and without cause then and there left his bed and board once for all. Furthermore, we would believe .that he never at any time laid as much as the weight of his hand upon her in anger; contra, listen to this from the ’record:

“.Mr. Dolman: Don’t you know, as a matter of fact, that Mr. Morris never laid a hand on you in his life? A. Indeed, he did; and I have been the mother of seventeen children, and they should have all been here today, with that daughter that is here against me; but he had kicked me around the' prairies of St. Joseph, in those days, and I laid for nine months after that, one time when Walnut street was being graded; I was the mother of twins three different times, and cluring one of those times, at twelve o’clock at night, he abused me for going over and getting my horse— he was too cowardly to go and get the horse — .”

Moreover, we would believe that Mrs. Morris (though not strong physically) braved snow storms to earn money by writing, by teaching, later by raising chickens and selling eggs, but that mostly by uncommon shrewdness, economy and thrift (and with but little financial aid from her husband) she took the property given her by her parents and by swaps, mortgages, saving her rents and untiring attention to her affairs, she added thereto and laid up against a rainy day in her own name all the property mentioned in the bill. Contra, by the same token we would believe that she was an invalid, frequently under the expense of a doctor’s charge, not able to do her housework and was one who never earned a penny or had a particle of property except what she got from her husband’s wages and the profits of his business. And so on and so on.

Fortunately much of the exaggerated color of the testimony of the immediate parties to the quarrel (we refer to the ladies of the Morris and Meister families, and to a sister of Mrs. Morris, Mrs. Crarney) may be referred to that inflammation springing not unfrequently in persons of a certain temperament and environment when • the sweet milk of domestic love and felicity is changed into the gall and bitterness of discord and angry strife over antagonistic claims to property. Fortunately, too, the vital facts upon which plaintiff’s case must stand or fall are, as presently seen, somewhat disconnected from those spectacular phases of the testimony, summed up and indicated as above, and lie within a small compass. Before leaving this feature of the case, it is not amiss to say that Mrs. Patrick Craney, born O’Rouke, a sister of Mrs. Morris, took her side in the controversy, while Mrs. Meister, the daughter (a married woman with three children), took her father’s — the Morris and Meister people all living in the same household. Speaking of talking, the feminine persistency and factional zeal of those interesting ladies on the stand could be controlled, it seems, by neither the laws of the land nor by those of social usage, by neither court nor counsel, so that their testimony, by spells, was more voluble than valuable, more tart than true. To show the tension and color of feeling, breeding contradictions and feverishness, we will mention some incidents throwing light on the situation and, we think, justifying such conclusion. Mrs. Meister’s given name was Mary. While on the stand she said she had heard her mother remark, when she was a little angry, that her father “didn’t have any right around there and that what was there was hers alone. ’ ’ At such times ‘‘ she always also made the remark that when he got old and couldn’t work any more, that she wouldn’t have him around her.” At that point her mother raised her voice in open court to the effect following, to-wit: “Are you afraid of Grod, Mary? I raised you well but you don’t' show it.” Referring to her eighty-year old grandmother who got hurt when her parents had their last quarrel, on the cross-examination of Mrs. Meister the record shows thus:

“Q. He pushed this lady, over eighty years old, into the wood pile? A. He had to do it, to protect himself from her.

“ Q. And -when lie pushed her into the wood pile, did she receive any wounds or bruises, or do you know? A. Well, I couldn’t prove that. She had been hurt in a railroad wreck, and any marks she had I couldn’t tell.

“Q. You saw marks, though? A. No; I thought she was just like a snake; I wouldn’t touch her.

“Q. You left her lying there in a crippled condition? A. Why, she was not in a crippled condition. The next morning she came into our house.

“Q. You would not handle her on that occasion, would you? A. No; I don’t believe I would touch her.

“Q. If she had been in a dying condition, you would not have touched her? A. No; I wouldn’t.

Q. You would have seen her die there without trying to do anything? A. Yes, sir.”

We are moved at this point to make a remark or two and pause long enough to do so, viz: The Scythians, it is said, ate their grandmothers when through with the old ladies, but Mrs. Meister would not even touch hers in extremis. She also had droll notions as to grandfathers’ hats (and heads). Vide the following: After testifying that grandfather O’Kouke called her “pretty bad names,” she said she “picked up a brick, threw it at him, knocking his hat off.” At this point the witness, without leave, left the stand and courtroom apparently unseen by counsel, who, busy objecting and saving exceptions, had other fish to fry than to watch her movements. We think so because we find that Mr. Boyd, counsel for defendant, returning to his cross-examination, began a question as follows : “I will ask the question — ” .Thereat, interrupting, the court said: “Well, the witness is gone now, Mr. Boyd.” Another witness for plaintiff, Mr. Nichols, took flame from the prevailing fire. He was asked by Mr. Boyd the following questions and made the following answers:

“Q. Then you say you never spoke to a human being concerning what you knew, and what you could testify to in this case, until you came on the witness stand? Do I understand you that way? A. Well, you can understand it that way if you want to.

“Q. Well, is it true? A. It is true! Goddamn you.’’

These incidents might be added to from the testimony of others, but the above will suffice as an index to the welter of emotion at the trial, and which makes much of the testimony of the parties and their partizans of little probative force to convince the judgment or excite the conscience of a chancellor.

We shall not cumber the opinion with all the details of the testimony. To do so would be both impossible and unprofitable. A dispassionate and painstaking estimate of those features of it relating to the gist of the charge in the bill, we think is this:

Plaintiff by trade was a stone fitter. At the outset of his married career he was a saloonkeeper in Topeka, Kansas, but fell into financial misfortune, out of which he was assisted by his wife’s parents. He then moved to St. Joseph, and thereafter plied his trade there and in that region as a mechanic, on wages at times, and at other times took what is called heavy contracting, such as house moving, doing stone work in the reconstruction of buildings, razing buildings, etc. In some of these contracts he made a profit, on others he apparently suffered losses. Sometimes he was out of employment. At a certain time while engaged on a contract, an employee was injured and brought suit against him and certain co-contractors for damages. At that time he owned a home in St. Joseph, a lot and a house of four rooms, and fell upon the plan of avoiding supposed danger from that suit by transferring his home to his wife. He carried out that scheme as to that property. Thenceforward, because of the risks and hazards of his business, he acted on the plan, so adopted, of having no property in his own name subject to execution. In accordance therewith whatever money he turned over to his wife to invest was intended to be invested by her and was invested so as to effectuate that policy. We reproduce some of plaintiff’s testimony, that, in the most favorable view possible to give it, outlines a plan of the kind we have described, thus:

“Q. Well, just state what occurred between you and your wife? A. Well, at that time, I was doing a little contract work at the Pacific Elevator Company, a'nd there was a man accidently got hurt up there, and I had just a little four-room house at that time, and it was partially paid for, I don’t think it was all paid for. Then this man got hurt, and they brought suit against me and the Pfeiffer Stone Company and the Elevator Company, jointly. It scared me to death. I just had a little home, and I thought we would save that and have that in our old age. I never knew whether I would ever have anything else or not, and after I got out of that they brought suit, of course, and the suit was throwed out of court, and my friends advised me then, they says: ‘Here, you are out of this, and you don’t know whether you are going to ever have anything else or not. You turn that home over to your wife, and you will have a home,' and they can’t take it away from you.’ That was the beginning of that arrangement.

“Q. Now, at that time, did you have an understanding with your wife, as to that? A. Yes, sir.” . . “Mr. Dolman: Mr. Morris, who furnished the money to purchase all of this property. A. Well, I think that I furnished it. I have been the only earner. . . A. Well, I always brought money home, and it was the understanding that she was to settle all of the accounts and look after general matters and such things. Q. Now, when property was purchased by her, what was said about it? A. .Well, whenever a piece of property was to be boug*ht, we went together and talked the matter over and advised among ourselves. Of course, we got along very happy and all right that time, and we talked the matters over, and talked about how it was best to do, and how best to use our money. Q. And who would make the deal? She or yo.u? A. Well, I made most of the deals, myself. Q. Who would carry out the contract? A. Well,- when it came, to paying out the money, she had the money in her clothes or pocket, and she would pay the money. Q. And take the deeds? A. Yes, sir, it was the understanding that the deeds were to be taken in her name. Q. Did Mrs. Morris have any money when you married her? A. No sir, not a cent, to my knowledge. Q. Has she had any money during her marriage, other than what she procured from you? A. Nothing in the world, sir.”

On cross-examination, plaintiff testified in part as follows:

“Q. Let me finish my question. And in order to better protect yourself from liabilities which might accrue, and avoid the payment of any liability which might arise, you concluded to buy property and take the deeds in your wife’s name. Is that correct? A. It was an understanding between--. Q. No, I want an answer to my question. A. I don’t understand your question. Just ask the question in a clear way, and I will try to answer it. Q. Yes, sir, I will do so. You were in hazardous business? A. Yes, sir. Q. And you were liable to be sued on account of some injury or some accident which might befall somebody working under you, or with you or for you, or working for somebody else, that your men might hurt? A. Yes, sir; I might be brought into something of the kind. Q. In fact, you were brought into one lawsuit? A. Yes, sir. Q. And the moment you got through with that lawsuit, you concluded that it was probable that you would be sued again, and that the property you should have or should get, you would put in your wife’s name? A. Yes, sir, I would save my home. Q. And that was to avoid future liability to any person to whom you might be indebted? A. Yes, sir. -Q. So that you then began putting the property in her name, on that basis, that early? A. Yes, sir, that is right. Q. And then you continued that, up to the time the last piece of property was put in her name? A. Yes, sir; it was an agreement and understanding between I and her. As I earned a little money, we went together and invested, and it was invested for I and her, for our mutual home and happiness. Q. You both helped to make money. A. Well, I don’t know; she was my housewife, and took care of my house; she made no money otherwise. Q. She helped you make this money, by taking care of your family, and raising your family? A. Yes. Q. Well, you didn’t actually pay her any wages ? Her services toward the maintenance of the family were worth pretty near as much as yours, weren’t they? A. I am not able to answer that part. I don’t know; I will leave that to somebody else to answer that.”

The above puts the position of plaintiff on the question of a resulting trust in the very best light allowable. We are not satisfied that the properties so put in the name of defendant were wholly paid for by the earnings of plaintiff. To the contrary, our conclusion is that defendant’s parents assisted her in acquiring some of it, and that some of it was purchased with her savings from her own rents and the odds and ends of her savings from wages given to her by plaintiff. She seems to have been left to manage her household affairs and family expenses the best she could out of her husband’s earnings, most of which, we think, were turned over to her by him to run the house or pay his debts — she acting as his time-keeper, bookkeeper and paymaster. That she was a phenominally frugal housewife with an eye to laying by, we are convinced. Her sister called her “an extremist in economy” and we will let it go at that. Maybe that is where the marital shoe pinched. We think it is a fact also that in some instances she bought property on her own initiative and in others on his, and that generally they consulted with each other on business matters of that character. Both had sharp and unruly tongues with rough sides (hers the sharper of the two). They now and-then forgot the precept that to return abuse for abuse is but to heap mud on mud. Both had other failings, but we may as well put them to one side, for the law of the case does not hinge on them, and a woman in this court is to have a little latitude if she is the mother of seventeen children. There came a time when they no longer agreed at all as spouses, but (more’s the pity) had a bitter quarrel and their paths parted forever. Close observers of the phenomena of human nature have noticed that sometimes quarrels exhaust themselves with excess of fervor and fury and thereby die out. So, peradventure, pots (boiling too fiercely) boil over, put out the fire underneath and cool off. But this quarrel was not of that sort. It seems to have run from words to blows and made reconciliation impossible between these two old folks. This climax did not happen spontaneously. It had a history and things grew little by little until the explosive catastrophe came. Who was to blame we do not know, and if we did know we could not say that such knowledge would materially assist in determining facts looking to an alleged resulting trust, or in applying the law to those facts.

As we understand the brief of learned counsel for plaintiff, he does not now contend that the decree was right in so far as it took from defendant the old-line policy of insurance on the life of her husband in which she was beneficiary. He does contend, however, that in other particulars the decree was equit able and supported by recognized equity principles.

It will be observed, moreover, that the chancellor did not divest title ont of defendant and vest it in plaintiff as to one piece of real estate. We have looked into that matter with circumspection and care, with the result that it seems to us, on this record, that if plaintiff made a case on any tract he made one on all ; and if, on the other hand, defendant’s title was good as to one tract it was good as to the others. We can not determine this case on the theory of winding up au imaginary partnership.

There are cases in the books 'where A turns over to B money to invest for A. Where B, in such case, invests in favor of himself, A is not without remedy in equity. Manifestly this is not a case of that sort. There are other cases where a trust arises ex maleficio. Manifestly the instant case is not one of that kind. Nor is it a case of an express trust. Nor does it come within any bounds or definition of any implied trust with which we are familiar, where the question (as here) is between the original parties to the transaction. If creditors in their own'right had filed a creditors ’ bill, then we would have another question to deal with. But this case is on appeal, on a decree on Mr. Morris’s bill, and his administrator, on such appeal, can have here no right decedent would not have had below. If plaintiff, as the testimony strongly suggests, invested his accumulations in the name of his wife to avoid the hazard of business obligations, thereby subjecting his means to hazards arising from matrimonial infelicity, that was his affair and does not concern a court of conscience on his complaint. He should have looked before he leaped and taken care not to jump from the frying pan into the fire. If, as somq of the evidence indicates, plaintiff gave to his wife as a gift such increment of his wages as accrued to her through salvage from debt-paying, or from frugality, then that does not concern a court of conscience on his complaint. Will a chancellor, on his complaint, be less generous than he was with his own wife? He could give and she could get, unafraid of the law as between themselves. Running through the whole gamut of this ease is the dominant note that plaintiff from time to time intended what he gave his wife as an advancement or gift to her — an offering on the altar of connubial peace and bliss. He may not now, by afterthought, change the. character of those transactions. To divest out of a wife and put into her husband the title to real estate solemnly evidenced by deeds taken by the°consent of both (a consent long acquiesced in) in the name of the wife, demands high and stringent proof to prove a resulting trust. To prove such trust calls for evidence clear, cogent and altogether convincing, so that the chancellor can say on his very conscience that an implied trust exists beyond any serious question. The testimony in this case falls far short of that character of proof, and falls far short of sustaining the substantive allegations of plaintiff’s bill.

We conclude the decree was for the wrong party. Therefore, so far as it was in favor of plaintiff, it is reversed and the cause is remanded with directions that plaintiff’s bill be dismissed. It is so ordered.

All concur except Valliant, J., absent.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    JAMES B. JOHNSON, Appellant, v. UNITED RAILWAYS COMPANY et al.
    Division One,
    May 31, 1912.
    1. DEMURRER TO PETITION: Sustained on Former Appeal: Same Cause Stated in New Suit: Accounting Alone in Last: Injunction, Rescission and Accounting in Former. Where the court sustained a demurrer to the petition in. the former action, which sought an injunction, rescission of a contract and an accounting, on the ground that it did not state a cause of action, it will not be held that a demurrer to a petition in a subsequent suit which seeks only an accounting was sustained for a different reason; for the rule is that where a petition states, in the same or different counts, several grounds of recovery, a general demurrer thereto will not be sustained if a cause of action is stated on any ground. So that if in the petition filed in the former suit all the facts of the transaction were stated upon which an injunction, a rescission of a contract and an accounting were sought, and a demurrer thereto was sustained and that demurrer was soundly ruled, so will a demurrer to the petition in the present suit, in which the same facts are stated and only an accounting is sought, be sustained.
    2. -: -: -- — : Res Adjudicata. "Where a demurrer to the petition in the former suit was sustained on the ground that it failed to state a cause of action and that judgment was upheld on appeal, that adjudication, in a subsequent suit wherein the petition states substantially the same facts and transactions that were stated in the former opinion, is res adjudicata.

    3. -: -: -: -: Hearing on the Merits. A judgment on a demurrer to a petition holding that it does not state a cause of action is res adjudicata on the merits in a subsequent suit wherein the petition states substantially the same facts and transactions that were stated in the petition held insufficient, and praying the same relief. Where the demurrer strikes at the merits of a cause, its very life and substance (and not at some collateral matter arising during the progress of the trial, or to some matter in abatement, such as non-joinder or misjoinder of parties, multifariousness, improper joinder of actions1, etc.), the judgment sustaining it is a final one and a complete bar to a further adjudication.
    4. LIMITATIONS: Five Years: Fraud. A bill in equity brought by a stockholder of a corporation, for the benefit of the corporation, for an accounting, and for the recovery of alleged profits made by the defendants, growing out of an alleged fraud perpetrated by them upon the corporation, is barred in five years after the perpetration of the fraud, unless the petition contains averments of substance that the facts constituting the fraud were not discovered or known by plaintiff within the five years.
    5. -: -: -: No Allegation of Want of Knowledge: Presumption. In the absence of any allegation from the bill of no knowledge of the fraud at the time it was perpetrated, it will be presumed, in a suit for relief against the fraud brought more than five years after its perpetration, that plaintiff (or the stockholder from whom he bought the stock of the corporations committing the fraud) had knowledge of it from the date of the fraudulent transactions.
    6. -: -: -: Knowledge Presumed: Concealment: Facts Shown by Records and Newspaper Notoriety. An equitable suit for relief against fraud is barred in five years whether or not plaintiff and those from whom he bought the stock-of the defrauding, corporation knew of the fraudulent transaction if the facts showing the fraud were open and appeared upon the records of the corporation and the recorded mortgages executed in pursuance to the fraudulent acts. To prevent the statute from running there must be concealment, and mere silence is not concealment; there must be some trick or contrivance intended to exclude suspicion and prevent inquiry; and where the transactions alleged to have been fraudulent were of a public character, affecting the entire street railway system of a great city, and were the subject of general conversation and newspaper comment and notoriety, no concealment can be said to exist, for the means of knowing is held’to be knowledge.
    7. -: -: -: -: Trust Funds: Fiduciary Relation. But this rule as to concealment and knowledge does not apply to parties sustaining a fiduciary relation to plaintiff in a suit to compel them to account for trust funds fraudulently converted to their own use, but such relation exists only where there is an express trust, created by deed or will or law. The five-year statute is a bar to a suit to recover moneys converted to his own use by a constructive trustee of an implied trust,. unless there has been such concealment of the fraud as to defeat discovery.
    8.' -: -: Extended by Nonsuit Statute. A judgment upon a demurrer to the merits of the cause is not a nonsuit; and hence the provisions of Sec. 1900, R. S. 1909, providing that the plaintiff may have one year additional time after nonsuit suffered in which to renew his suit, do not extend the five-year Statute of Limitations by one year, so as to permit plaintiff, after a demurrer to his petition in a suit brought within the five years was sustained, to bring the suit over again within one year after said judgment but more than five years after the fraudulent transactions were perpetrated.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Affirmed.

      John A. Gilliam for appellant.
    (1) The court erred in sustaining demurrer to petition thereby holding that this was not the same as the previous caso. Johnson v. Railroad, 227 Mo. 423. (2) The court erred in sustaining demurrer to petition thereby holding that the petition did not state facts sufficient to constitute a cause of action. Bent v. Priest, 86 Mo. 475; Ward v. Davidson, 89 Mo. 458; Story on Agency, sec. 207; Chinn v. Chinn,' 22 La. Ann. 599; Bosworth v. Allen, 168 N. Y. 157; 1 Morawetz Priv. Corp. (2 Ed.), secs. 243-245; Field on Corp. 174; 1 Perry on Trusts (3 Ed.), sec. 429; Wardell v. Railroad, 103 U. S. 651; Jones v. Elec. Co., 144 Fed. 765; Cook'on Corp. (5 Ed.), see. 649; 10 Cyc. 799; Jackson v. Ludeling, 21 Wall. 616; Menier v. Tel. Works, 9 Ch. App. Cas. 350; 2 Clark and Marshall on Corp., secs. 539 to 545, pp. 1667 to 1692; Goodwin v. Canal Co., 18 Oh. St. 169; Ervin v. Railroad, 20' Fed. 577, 27 Fed. 625; 2 Story’s Eq. Jur., secs. 1261-1262; Sage v. Culver, 147 N. Y. 241; Gamble v. Q. C. W. C'o., 123 N. Y: 91; Trust Co. v. Railroad, 150 N. Y. 410; Hinds v. Gas Co., 88 N. Y. Supp. 954; Meeker v. Iron Co., 17 Fed. 48; Sidell v. Railroad, 24 C..C. A. 216; Barr v. Railroad, 96 N. Y. 444; Wright v. Óroville Co., 4Ó ■ Cal. 20; Ponder v. Railroad, 72 Hun, 380, 25 N. Y. Supp. 560; Gregory v. Patchett, 33 Beavan, 595; Meyer v. Railroad, 7 N. Y. 245; Woodroof v. Howes, 88 Cal. 184; Koehler v. Iron Co., 67 U. S. 715; Freeman v. Stine, 15 Phila. 37; Bank v. Claxton, 80 S. W. 607; Smith v. Tyler, 57 Mo. App. 668; Euneau v. Rieger, 105 Mo. 659; Angle v. Railroad, 151 U. S. 1; Pomeroy Eq. Jur. (3 Ed.), secs. 155,1053. (3) The court erred in sustaining demurrer to petition thereby holding that the cause of action therein stated was res adjudicates. Railroad v. Hoyt, 177 111. 617; Railroad y. Mc-'Cerrin, 75 Miss. 687; O’Hara v. Parker, 27 Ore. 156; Spicer v. United States, 5 Ct. 'Cl. 34; Robinson v.Howard, 5 Cal. 428; Campbell v. Hunt, 104 Ind. 210; Bennett v. Bank, 61 Mo. App. 300; Wells v. Moore, 49 Mo. 229; 1 Freeman on Judg. (4th Ed.), secs. 260-267; Gordon v. Burriss, 125 Mo. 39; Ferry Co. v. Railroad, 142 U. S. 410; Packet Co. v. Sickles, 24 How. 333; Gould v. Railroad, 91 U. S. 526; Boyd v. Alabama, 94 TJ. S. 645; Russell v. Place, 94 U. S. 606; Morrell v. Morgan, 65 Cal. 575; Gilman v. Rives, 10 Pet. 298; Richardson v. Barton, 24 How. 188; City v. West, 7 Wall. 106; Mfg. Co. v. Tag Co., 121 Fed. 313; Pap-worth v. City, I'll Ga. 54; Genet v. Canal Co., 163 N. T. 178; Wiethaupt v. St- Louis, 158 Mo. 655; Detrick v. Sharrar, 95- Pa. St. 525; Loudenback V. Collins, 4 Ohio St. 251; Robb v. Coal Co., 216 Pa. St. 423; Packet Co. v. Sickels, 5 Wall. 580; Wells on Res Adjudieata, secs. 13-440'; Hughes v. U. S., 71 H. S. 237; Keater v. Hock, 16 Iowa, 23; Lockett v. Lindsay, 1 Idaho, 326; Wharton’s Evid. (3 Ed.), sec. 782; Thomas v. Bland, 91 Ky. 1; Swanson v. Railroad, 73 Minn. 103; Duke v. Tel. Co., 71 S. C. 95; State v. McEldowney, 54 W. Ya. 701; Glass v. Min. Co., 34 Mont. 88; Wilcher v. Robertson, 78 Ya. 718; Langmeir v. Landes, 113 111.'App. 137; State v. Roth, 47 Ark. 226; Gallup v. Lichter, 4 Colo. 298; Terry v. Hammonds, 47 Cal. 32; Birch v. Funk, 2 Met. (Ky.) 547; Kingston’s Case, 2 Smith Leading-Cases, Hare & Wallace’s Notes, 791; 1 Greenleaf on Ev., secs. 528-530 (Redfield’s 12 Ed.); Wibur v. Gilmore, 38 Mass. 250; Rodman v. Railroad, 59 Mich. 398; Gordon v. Burris, 153 Mo. 227. (4) The court erred in sustaining the demurrer to the petition thereby holding that the Statute of Limitations barred this suit. Chouteau v. Allen, 70 Mo.-335; Sec. 1900, R. S. 1909; Chouteau v. Rowse, 90 Mo. 191; Thurman v. James, 48 Mo. 236; Coit v. Bland, 12 App. Pr. 462, 33 Barb. 357; Harrison v. Wood, 2 Duer, 50; Jansen v. Acker, 23 Wend. 480; Rudd v. Davis, 3 Hill, 287; Bishop v. Morgan, 1 Code Rep. (N. S.) 340; Long v.’ McGowan, 16 Colo. App. 540; Hilton v. Adrar., 110 Ky. 522; Chitty on Pleading- (14 Am. Ed.), 196, 197;Koeh-ler v. Iron Co., 67 U. S. 715; Elliott v. Mach. Co., 139 S. W. 356. (5) The court erred in sustaining demurrer to petition, because essential additional allegations have been supplied curing defects in previous petition. Warner v. Blakeman, 4 Keyes (N. Y.) 487; Murtha v. Corley, 90 N. Y. 372; Bent v. Priest, 86 Mo. 475; Gibson y. White, 3 Munf. (Ya.) 94; Brown v. Admx., 61 Ky. 316 ; Ogden v. Wood, 51 How. Prac. 375; Com. Co. v.. Railroad, 126 Mo. 344; Jones v. Elec. Co., 144 Fed. 765; Woodroof v. Howes, 88 Cal. 184; Banks v. Judah, 8 Conn. 145; Meeker v. Winthrop, 17 Fed. 48; March v. Railroad, 43 N. H. 515; Green v. Hedenberg, 159 111. 493; Young v. Drake, 8 Hun (N. Y.) 64; Ramsay v. Gould, 57 Barb. 398; Carson v. Gaslight Co., 80 Iowa, 638; Dupont v. Railroad, 18 Fed. 467; Munson v. Railroad, 103 N. Y. 58; Hill v. Mining Co., 119 Mo. 22;. Pollitz y. Gould, 94 N. E. 1088; Morawetz on Priv. Corp. (2 Ed.), sec. 267; Hughes v. U. S., 71 U. S. 237; Witte v. Storm, 139 S. W. 384; Sweeney v. Ref. Co., 30 W. Ya. 443; Railroad v. Collins, 40 Ga. 582; Elkins v. Railroad, 36 N. J. Eq. 5; Pender v. Lushington, L. R. 6 Ch. Div. 70; Perry on Trusts (6 Ed.), secs. 129, 217, 196-197, 209, 427, 428; Railroad v. Page, 35 Ark. 304; Duncomb v. Railroad, 84 N. Y. 190; Cavagnaro v. Don, 63 Cal. 231.

      Boyle <& Priest, Schnurmctcher & Rassieur, George T. Priest, T. E. Francis, George L. Edwards and Walter G. Neun for respondents.
    (1) The petition does not state a cause of action, because it does not negative the recitals in the tripartite agreement, showing that Transit Co. was insolvent and unable to continue operations as a public service company, and that there was an urgent necessity for Transit Co. to sell its securities, as was done under bnd by virtue of said agreement, nor does the petition show that such sale was made on less advantageous terms than could have been secured elsewhere. Johnson v. Railroad, 227 Mo. 423; Tanner v. Railroad, 180 Mo. 1. (2) Plaintiff cannot maintain this action, because the petition shows he did not acquire his stock until after the tripartite agreement had been fully executed. Ins. Co. v. Barber, 60 L. R. A. 933; Hawes v. Water Co., 104 U. S. 450; Dinpfell v. Railroad, H. S. 209; Dannmeyer v. Coleman, 11 Fed. 97; Wilson.v. Railroad, 120 Mo. 58. (3i) The petition shows on its face that a demurrer to a petition, praying for a rescission, an injunction and an accounting, predicated on the same alleged wrongs herein counted on, was sustained, and that the judgment rendered' thereon was final. That judgment was an adjudication of the „case on the merits (Johnson v. Railroad, 227 Mo. 423), and-hence it is a bar to the prosecution of the present case. Ins. Co. v. Smith, 117 Mo. 296; Coleman v. Dalton, 71 Mo. App. 22; Pond v. Huling, 125 Mo. App. 482; Lyon v. Mfg. Co., 125 U. S. 698; Railroad v. Railroad, 27 Fed. 283; Spencer v. Watkins, 169 Fed. 379; Turner v. Cates, 90 Ga. 731; Bank v. Walden, 1 La. Ann. 46. (4) (a) The alleged cause of action counted on is barred by the five year Statute of Limitations, in that said alleged cause of action accrued in October, 1904, while this suit was not commenced until September 16,1910. The cause of action attempted to be asserted is predicated on an alleged fraud, and hence the five year statute is applicable. Sec. 1889:, R. S. 1909; Bent v. Priest, 86 Mo. 487; Lardis v. Saxon, 105 Mo. 485; Hudson v. Cahoon, 193 Mo. 547. (b) There is no showing that would tend to extend plaintiff’s time, under the fifth subdivision of sec. 1889, Revised Statutes 1909, beyond the five year period after the cause of action accrued, because there is no averment that he did not have knowledge of the facts at the date of the accrual of the alleged cause of action. County v. Bragg, 135 Mo. 291; Callan v. Callan, 175 Mo. 346; State v. Tates, 231 Mo. 276; Scott v. Boswell, 136 Mo. App. 601; State v. Musick, 145 Mo. App. 47. (5) The point made in appellant’s brief, that the Statute of Limitations does not apply to this action, because it is said to be an action for trust funds fraudulently converted, is not well taken, inasmuch as that principle is applicable only to technical express trusts created by will or deed, and does not apply to resulting or implied trusts. Landis v. Sax-ton, 105 Mo. 486; Hudson v. Cahoon, 193 Mo. 562; Bank v. Thayer, 184 Mo. 94; Bent v. Priest, 86 Mo. 475, 488. (6) The point made in appellant’s brief, that the one year Statute of Limitations (sec. 1900', R. S. 1909), granting additional time in case of nonsuit, is applicable to this case, is not well taken, because: (a) The determination of the previous case on demurrer to the petition was not a judgment of nonsuit, but was a judgment on the merits. Cases cited under pt. 2. (b) The former action was for an injunction, a rescission and an accounting, while the present action is for an accounting only; in the former case plaintiff repudiated the tripartite agreement and sought to rescind it; in this case he affirms it and seeks to recover the alleged fruits garnered from it. The one year statute is not applicable unless the form of action asserted in the new suit is precisely the same as that asserted in the suit in which nonsuit was suffered. Meddis v. Wilson, 175 Mo. 134; Whalen v. Gordon, 95 Fed. 305; In re Kemper, 142 Fed. 210; Bricken v. Cross, 163 Mo. 449.
   WOODSON, J.

This is a bill in equity instituted by the plaintiff against the defendants in the circuit court of the city of St. Louis, as -a stockholder in the Transit Company, seeking an accounting for certain profits alleged to have been made by the defendants growing out of a tripartite agreement, made and entered into by and between the St. Louis Transit Company, a street railway corporation organized under the laws of the State of Missouri, party of the first part, and the United Railway Company, a street railway corporation organized under the laws of Missouri, party of the second part, and Brown Brothers & Company, a copartnership of New York City.

The petition is based upon the same cause of action, and the petition is substantially the same as that involved in the case of Johnson v. United Railways Co., 227 Mo. 423. The principal and practically the only difference existing between the petition in that case and the one filed in this case is this: In that case the suit was for a rescission of the contract before mentioned, injunctive relief, and an accounting for the profits growing out of said contract, while the present suit is for an accounting only.

(The word profits as used in this case means the amount of money or property the defendants received from the Transit Company under the tripartite contract, over and above the price they paid for the same, and not the income and profits of the company derived from the traveling public.)

Reference is here made to that case from a statement of the facts.

At the first trial, the circuit court, on demurrer to the third amended petition, held that it did not state facts sufficient to constitute a cáuse of action against the defendants, and in addition, the plaintiff having been compelled under section 1826, Revised Statutes 1909, to stand on his petition, treble damages were assessed against him.

From that judgment the plaintiff appealed to this court, which was in all things affirmed in the case of Johnson v. United Railways Co., supra.

Being prohibited by said section 1826 from filing another amended petition in that cause, the plaintiff, upon the affirmance of the judgment of the circuit court, by this court, brought this suit in the same court.

To the first amended petition, the defendants filed a demurrer, the substance of which is that:

(1) Because it does not state facts sufficient to constitute a cause of action against said defendant.

(2) Because the petition shows upon its face that the matters therein set out are res adjudicata.

(3) Because the petition shows on its face that the cause therein alleged is barred by the Statute of Limitations.

(4) Because it appears from the amended petition that plaintiff’s cause of action accrued more than five years prior to the institution of this suit, and that this suit was not filed within one.year after plaintiff suffered a nonsuit in any suit based on the same cause of action; and the amended petition herein shows that the former suit therein referred to, was based upon a different cause of action from that now sued on.

The demurrer was sustained, and the plaintiff declining to plea further, judgment was rendered accordingly against him, from which he duly appealed to this court.

„ I. The first reason assigned by counsel for the appellant for a reversal of the judgment, is stated in this language:

“The court erred in sustaining demurrer to petition thereby holding that this was not the same as the previous cause.”

I am unable to see why it must follow, as contended for by counsel, that because the court sustained the demurrer to the petition it must also have held that “this was not the same as the previous cause.”

No one can read the petitions filed in the two cases, and come to any other rational conclusion, but that the two causes of action stated are one and the same, the only difference being that the present suit is for an accounting only, while the former was for an injunction, rescission and an accounting; the latter including the former and more.

Independent of this, counsel for both the appellant and the respondents concede and insist throughput the pleadings, evidence, briefs and arguments, that the two causes of actions stated in the two petitions are one and the same, bottomed upon the same facts and stated almost in the same language in each petition.

That being true, there is nothing to be done but to treat them as being one and the same.

That being true, then it logically follows, that if the decision of this court, in the case upon the former appeal, which included the grounds for an accounting, was soundly rendered, then the judgment of the circuí t court sustaining the demurrers to the petition in this cause, must also be considered sound and proper. I do not refer to the question of practice regarding the right to join in the same hill a count for a rescission of the contract, and for an accounting for the profits growing out of said contract, for the reason that if the petition in that case had stated a good cause of action against the defendants for the injunction prayed, the rescission sought or the accounting asked, or all three collectively, the demurrer thereto should not have been sustained, for the reason that this court has repeatedly held that where the petition stated in the same or different counts, several grounds for a recovery, it is error for the court to sustain a general demurrer to the petition or to the evidence, when it tends to prove any one or more of said grounds.

In such a case it is the duty of the court, and it will separate and preserve the good grounds for a recovery from the bad, and cast the latter aside as surplusage.

In the petition filed in the former suit, as in the one filed in this one, all the facts that existed in the transaction were stated, and if they had constituted grounds for an injunction, rescission or for an accounting, the demurrer would not have been sustained; if however, those facts did not constitute grounds for any of the^objects sought by the petition, then the demurrer was properly sustained.

The petition in this case, as previously stated, is, for all intents and purposes, the same as was the first, and is predicated upon the same facts, save and except it does not pray for an injunction or ask for a rescission of the contract mentioned, but all the facts which were pleaded in the former suit are again pleaded here; and upon this state of the record we are in effect requested to reconsider the former 'ruling of this court in that cause — the contention of counsel being, that “the court erred in sustaining demurrer to petition thereby. holding that the petition did not state facts sufficient to constitute a cause of action.”

In response to this request, we have carefully reconsidered the question, and examined anew the numerous authorities cited by counsel for both parties, but after doing so we are unable to see any valid reason for changing our views of the law so well expressed in that case. We are, therefore, of the opinion that the demurrer was properly sustained to the petition filed in the first suit, and consequently must hold that the trial court properly sustained the demurrer to the petition in this case, because it does not state facts sufficient to constitute a cause of action.

II. Counsel for respondent insist that the demurrer in this case was properly sustained, for the reason that the petition shows upon its face that the matters set out are res acljudicata.

The petition in this case states substantially the same facts and transactions that were stated in the former petition. This is contended for by counsel for appellant, and conceded by counsel for respondents. That being true, then the same cause of action that is stated in this petition was stated and adjudicated in the former trial, which must operate as a complete bar to this suit, without the «objection made thereto by counsel for appellant is well taken, which will be considered in the next paragraph of this opinion.

III. Counsel for appellant insists that the judgment on the demurrer in the former case is not res adjudicata in this one, for the reason “that there is no binding decision until a case is heard upon its merits.”

Let us consider for a moment the result, if that statement of the law is a correct enunciation of it. In the former suit we held, among other things, that the petition filed therein did not state facts sufficient to constitute a cause of action against'the defendants, and thereupon the plaintiff brought it over again in this suit. We have held in paragraph two of this opinion, that this petition does not state facts sufficient to constitute a cause of action; and since a cause, under our code of procedure, cannot be heard upon its merits, so long as it stands adjudged bad on demurrer, when and where would this litigation end?

Under this state of facts, the merits of appellant’s cause can never be heard in this case, consequently if a judgment on a demurrer to the merits is not res adjudicata, then he may go back to St. Louis and institute another suit upon the identical cause of action stated in the petitions ‘filed in this and in the former suit, which under our rulings in this and in the former suit would be demurrable also; and if the plaintiff has stated the facts of his case in this suit, of which there can be no doubt, then the third, fourth and fifth suits, or as many more as he might see proper to bring, would have to state the same cause of action as is here stated, and the rulings of this court, if our former decisions herein are to govern in the subsequent suits based upon this same cause of action, would prevent him from ever getting a hearing of his cause on its merits, for the simple reason that it has no merits, as we have held in this and in the former appeal. Consequently, if counsels contention is sound, then the plaintiff and his heirs, executors, administrators and assigns could bring a new suit under section 1900, Revised Statutes 1909, within a year after each and every demurrer to his petition is sustained, until the end of time, or until G-abriel sounds his trumpet.

Counsel for appellant, in his brief concedes that there is plenty of authority holding that a demurrer to the merits of a case is res adjudicata. On page 24 of his brief he uses this language:

“Cases can be found in the multiplicity of decisions in England, Ireland, Scotland, Canada, forty-six States, and United States courts, which have been poorly considered and wrongly decided, which can be twisted and a somewhat plausible argument made that they apply to this case, and make the decision of the demurrer in 227 Mo. 423, a final decision of this case.”

From this statement it is seen that counsel concedes that there is the greatest abundance of authority for holding that a judgment upon a demurrer to the merits is res adjudicata, but he seeks to escape the effect of those authorities by saying that they were “poorly considered and wrongly decided,” and cites scores of cases in support of his position.

I have examined quite a number of those cases and while they hold that a judgment on a demurrer is not a final disposition of the case, and a bar to a new suit upon the same cause of action, but all the cases I examined refer to judgments based upon a demurrer to some matter in abatement, and not to the merits of the cause itself.

In fact, counsel for respondents do not controvert the correctness of the rule of law announced in the authorities cited by appellant, which apply to judgments based upon demurrers to matters in abatement, and not to the merits of the case; but they insist that where the demurrer strikes at the merits and very life of the case, and the demurrer is sustained, quite a different rule applies wherever the common law prevails, and has not been changed by statute.

We,will consider a few of the cases where the question has been fully discussed and which have fully sustained the contention of counsel for respondents.

In considering this question, this court, in the case of Connecticut Mutual Life Insurance Company v. Smith, 117 Mo. 261, l. c. 296, in an exhaustive opinion written by Sherwood, J., concludes by saying that “This adjudication occurred in 1882, and though made on a demurrer to the petition, yet, as the demurrer went to the merits, the whole matter in controversy became res adjudicata.” [Biglow on Estoppel (5 Ed.), 560.]

So in Coleman v. Dalton, 71 Mo. App. 14, l. c. 23, the court said: “But whether the pleading be called the one or the other (demurrer or return) it is sufficient to say that by the pleadings the merits of the controversy were thereby submitted and the court at once heard and decided the case. A judgment on demurrer may be as final and conclusive between the parties as any other. It is otherwise only when the judgment on demurrer results from a defective pleading or other demurrable matter not relating to the merits of the case . . . But a judgment on demurrer may be a judgment on the merits. If so its effect is as conclusive as though the fact set forth in the complaint were admitted by the parties or established by evidence submitted to the court or jury. No subsequent action can be maintained by the plaintiff if the judgment is against him on the same facts stated in the former complaint. If any court errs in sustaining a demurrer and entering a judgment for defendant thereon, while the complaint is sufficient, the judgment nevertheless is on the merits.”

In Spencer v. Watkins, 169 Fed. 378, it was decided by the United States Court of Appeals, 8th Circuit, in an opinion by Hook, J., as follows: “A judgment to be conclusive as an estoppel between parties to a suit need not have been a formal judgment upon a hearing, nor does it matter that the question decided was purely one of law or that the decision was rendered on a demurrer, or a mere motion. If the merits were involved and decided, the decision is final.” The court said: .“The question involved was not a mere collateral one arising during the progress of a cause, but was of the ultimate and substantial rights of the parties. The order of the district court was not in‘ an inconclusive summary proceeding. It went to the very foundation of their claims, and was in terms decisive of the merits after a full hearing. It was a final and appealable order, and was affirmed upon like hearing by the highest judicial tribunal of the State. There would, therefore, seem to exist all the elements of an estoppel by judgment. It is not material that the Wilder Charity did not expressly join in the motion to strike the complaint in intervention from the files. The heirs made it a party . . . to the appeal to the Supreme Court. A formal joinder of issue is not always essential. [United States Fidelity & Guaranty Co. v. Haggart (C. C. A.), 163 Fed. 801.] Nor does it matter that the question decided in the prior case was purely one of law (Mitchell v. Bank, 180 U. S. 471), nor that the decision was upon a motion or a demurrer (Commissioners v. McIntosh, 30 Kan. 234; Truesdale v. Trust Company, 67 Minn. 454; Oregonian Railway v. Navigation Co., 27 Fed. 277), provided the merits were involved and were decided, and the order or decision of the court was final.”

The same rule is announced in the following cases: Pond v. Huling, 125 Mo. App. 474, l. c. 482; Oregonian Railway Co. v. Navigation Co., 27 Fed. 277, l. c. 283; Lyon v. Mfg. Co., 125 U. S. 698; Spencer v. Watkins, 169 Fed. 379; Turner v. Cotes, 90 Ga. 731; New Orleans City Bank v. Walden, 1 La. Ann. 46.

The foregoing cases, as well as many more throughout this country and England, in substance hold that where the demurrer strikes at the merits of a cause, the very life of it, and not to some collateral question arising during the progress of the trial, or to some matter in abatement, such as non-joinder or misjoinder of parties, multifariousness, improper joinder of actions, etc., the judgment thereon is final.

We do not wish to be understood as holding that, where the petition shows upon its face that the plaintiff has a good cause of action, but the merits thereof are so carelessly, imperfectly or defectively stated, as not to constitute a cause of action, the sustaining of a demurrer thereto would constitute res adjudicata. But in a case such as the one at bar, where the petition shows, as it did on the previous appeal, that the facts or merits thereof were all and well pleaded and still they constitute no cause of action, then the doctrine of res adjudicata does apply in full force and effect, and there is no sound reason why it should not so do.

. In the very nature of such a case, the merits could not be involved because not stated. If this was not true, then as previously stated, there could be and would be no end to litigation.

We are, therefore, of the opinion that the matters stated in this petition are res adjudicata.

. IV. It is also insisted by counsel for respondents that the demurrer was properly sustained because the cause of action stated in the petition, was barred by the five-year Statute of Limitations, the same being section 1889, Revised Statutes 1909.

Tlie petition charges,the illegal cause of action accrued in October, 1904, while the record shows .that this suit was instituted September 16, 1910, more than five years after the cause of action accrued.

The suit is a bill in equity brought by a stockholder of a corporation, for the benefit of the corporation, for an accounting, and the recovery of alleged profits made by the defendants growing out of an alleged fraud perpetrated' by them upon the corporation.

The fifth subdivision of said statute, which governs this case, provides what cases shall be barred in five years, and includes actions for relief on the grounds of fraud, with this proviso: “fifth, an action' for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued, until the discovery by the aggrieved party, at any time within ten years of the facts constituting the fraud.”

The case of Bent v. Priest, 86 Mo. 475, which was like the one at bar, held that the five-year statute applied thereto. In discussing the question the court on page 487 said:

“This suit was begun February 19, 1879, five years and ten to fifteen days after Wyman received the bonds for himself and defendant. The agreement by which the bonds were acquired and the receipt of the same are facts which were kept secret from all persons save those directly connected therewith, until 1878, when rumors were afloat pointing to these facts. They were then brought to the attention of the court and soon thereafter this suit was begun. Defendant pleaded the five-year Statute of Limitations, and plaintiff replied that the fraud was not discovered until within five years nest before the commencement of the suit. Section 3230, Revised Statutes, specifies five different classes of civil actions (other then those for the recovery of real estate) which can only he commenced within five years after the canse of action shall have accrued. 'The fifth is: ‘An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.’

“Our Statute of Limitations applies to equitable, as well as legal causes of action, and we agree with counsel for the defendant that this clause under consideration should be considered in the light of the former equity rules, the place of which, in many respects, at least, it was designed to take. Beyond doubt the statute does not now and never did run against an express continuing trust in favor of the trustee, certainly not until he openly repudiates the trust. [Johnson v. Smith, 27 Mo. 591; Smith v. Ricords, 52 Mo. 581; s. c., 56 Mo. 552.] Conceded it must be that by the equity rules, the statute was not applied by way of analogy, in cases of actual fraud, until the discovery of the fraud. But is it true, as is contended here, that by those rules the statute was applied without regard to the time of discovery in case of constructive frauds and trusts ? It was said by Scott, J., in Keeton’s Heirs v. Keeton’s Admr., 20 Mo. 541: ‘In cases of resulting, implied and constructive trusts, where a party is to be constituted a trustee by a decree of a court of equity founded on fraud, it is well settled as a rule of equity, that the Statute of Limitations, and presumptions from lapse of time, will operate. With regard to the Statute of Limitations, it will run from the time that the facts are brought home to the knowledge of the party.’ [See, also, Perry on Trusts, secs. 228 and 230; 1 Dan. Ch. Plead. 669; Hunter v. Hunter, 50 Mo. 445; Angell on Lim., sec. 470.] In the case last cited the defendants were the uncles and agents of the plaintiffs for the management and sale of the lands; they purchased the lands with the value of which plaintiffs were not familiar, at an under value; they then sold the same at an advanced price. It was a suit to establish a constructive trust for the profits arising from the resale. It was there said: ‘If a party is in possession of, or has notice of, the main facts constituting the fraud, the statute will commence running from that time.’ The difference of opinion expressed in that case and the subsequent one of Rogers v. Brown, 61 Mo. 187, is not pertinent to any inquiry here, for this case in no way concerns real estate.”

The bill alleges that the tripartite agreement was made September 27, 1904, subject to the approval of the stockholders; that it was approved October 19, 1904, and that it was fully executed November 1, 1904, but it nowhere charges that he had no knowledge of those transactions, or that those from whom he purchased his stock were ignorant of those facts. In the absence of such an allegation in the bill, the law will presume that they knew of those facts from the date of their occurrence, and having such knowledge the cause of action accrued at that time, which was more than five years prior to the institution of the first suit, as previously shown.

So under the authority of Bent v. Priest, supra, we must hold that the cause of action was barred by the Statute of Limitations. That being true, this suit, which is based upon the same cause of action, is barred also, regardless of the one year Statute of Limitations, presently to be considered.

But independent of the ruling just announced, this cause of action is barred by the five-year statute, whether the plaintiff and those from whom he purchased his stock knew of said transaction or not, for the reason that the facts were open and known, appearing upon the records of the corporation, and the mortgages or deed of trust executed in pursuance to the tripartite contract were recorded in the recorder’s office in the city of St. Lonis. No act of concealment of the facts is shown, but upon the contrary, the transactions themselves were of a public character, affecting the entire street railway system of the city which was the subject of general conversation and newspaper comment and notoriety.

The case of Shelby County v. Bragg, 135 Mo. 290, was a suit against the former clerk of the circuit court and ex officio recorder to recover fees collected by him in excess of his salary and converted to his own use, and which he had been enabled to retain because of fraudulent settlements made by him with the county court. In that case, this court, in discussing the effect of knowledge, or rather the want of knowledge of the fraud, by the county court, upon the five-year Statute of Limitations, said:

‘ The question is whether the statements made by defendant were such fraudulent concealments of the facts as delayed the operation of the statute until a discovery of the truth. The question is not whether the county, or its agent, the county court, was merely ignorant of the facts constituting the cause of action. Such ignorance will not suspend the operation of the statute unless it can be properly attributed to the fraudulent concealment of the facts by defendant. [Wells v. Halpin, 59 Mo. 97; Garret v. Conklin, 52 Mo. App. 659; Foley v. Jones, 52 Mo. 64.] It cannot be said that the evidence of the facts constituting plaintiff’s cause of action was concealed or suppressed. The evidence all existed upon the official books and records of the office, open to the examination of the court. The expert accountants who afterwards made an examination encountered no difficulties in making an account of fees collected. They reported no destruction of books, or the suppression or concealment of no fact which would prevent an accurate statement being made. . . . Statutes of Limitations are favored in the law, and cannot be avoided unless the party seeking to do so brings bimself strictly within some exception. ‘A party seeking to avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power, he will be held to have known it.’ [Wood v. Carpenter, 101 U. S. 141; Buckner v. Calcote, 28 Miss. 434; Nudd v. Hamblin, 8 Allen, 130.] A party cannot avail himself of this exception to the statute when the means of discovering the truth were within his power and were not used. [Cole v. McGlathry, 9 Me. 131.] In Wood v. Carpenter, supra, these among other conclusions were drawn, after a careful survey of the authorities: Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. There must be reasonable diligence, and the means of knowledge are the same' thing, in effect, as knowledge itself. ’ ’ ’

In State ex rel. v. Yates, 231 Mo. 276, being an action on the bond' of an absconding ex-treasurer of one of the State hospitals, the same doctrine is applied. The court, after quoting from the Bragg case and other cases, said: “Unless the doctrine of the Bragg case is to be overturned it must control here. We know' of no public policy or principle of law demanding the case to be overruled. It but proceeds upon trite precepts relating to negligence (and its converse, due diligence and care), viz.: That he who has at his disposal the means of knowing, is held to know; that he who shuts his eyes when to open them and look is to see, is held to see; and that where there is a duty to use diligence, those facts which diligence will discover are presumed to be known, under the law of notice. One must not go to sleep or rest on his oars where the issue is negligence. He must be up and doing, for the law favors the wakeful and diligent. [Adams v. Gosson, 228 Mo. 566.]” The court also adopts with approval the following language from State ex rel. v. Hawkins, 103 Mo. App. 254: “Our conclusion is that it accrued when plaintiff discovered the fraud; or when, by proper diligence as an ordinarily prudent man, he, under the circumstances, should have discovered it.”

To the same effect is Landis v. Saxton, 105 Mo. 485; Hudson v. Cahoon, 193 Mo. 547.

If we correctly understand the contention of counsel for appellant, he does not question the correctness of the law just stated, but insists that it has no application to the facts of this case, because this is a suit in equity brought against parties sustaining a fiduciary relation to the Transit Company, to make them account for trust funds fraudulently converted to their own use.

This insistence, in our opinion, is unsound. Learned counsel for appellant misapplies to this case the law applicable only to technical, express trusts, created by deed or will. The eases of Shelby County v. Bragg, supra, in express terms holds that the five-year statute is applicable to suits brought against trustees and other persons standing in a fiduciary relation to the party alleged to have been defrauded.

The distinction between this class of cases which involve implied trusts and those involving express technical trusts, in so far as this statute is concerned, is clearly stated in the case of Landis v. Saxton, 105 Mo. 486; an action was brought by the last surviving director of a corporation against its former secretary, to recover moneys of the corporation, retained by him. The court said (p. 489):

“Was the action of the plaintiff barred by the statute? The trusts against which the statute will not run ‘are those technical and continuing trusts, which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction’ of a court of equity; but other trusts, which are the grounds of an action at law are open to the operation of the statute. [Kane v. Bloodgood, 7 Johns. Ch. 90.] The kind of trusts which fall within the exclusive jurisdiction of a court of equity are direct trusts, created by deed or will, or by appointment of law, e. g., executorships or administrators; but cases of constructive or implied trusts which result from partnerships, agencies and the like, are subject to the operation of the statute. [Farnam v. Brooks, 9 Pick. 212.] The crucial test in all such cases is: Is there a remedy at law? If there is, that is a conclusive answer to the claim that a technical trust, as aforesaid, has been created. [Murray v. Coster, 20 Johns. 583.] Referring to the case in 7 and 20 Johns. Ch., supra, with approval, Story, J., says in Robinson v. Hook, 4 Mason, 152: ‘But, as to cases of merely constructive trusts, created by courts of equity, or cases which, in a sense, are treated for some purposes as implied trusts, to which, however, legal remedies are applicable, the doctrine cannot be admitted that the Statute of Limitations does not embrace them. If it were otherwise, there is scarcely a single case of báilment or of money received to use, or of-factorage concerns, or of general account into whose service the doctrine might not be pressed.’ [Angell on Limitations (6 Ed.), pp. 174, 175 and cases cited.] As showing that directors of a corporation are not trustees, within the technical rule, and that they may invoke the statutory bar when sued, see Williams v. Halliard, 38 N. J. Eq. 373; Spering’s App., 71 Pa. St. 1. In Kane v. Bloodgood, supra, under a statute substantially identical with the one under discussion, it was also ruled that the directors of an incorporated company were not technical trustees within the equity rule, and when sued for dividends on shares could invoke the statute. If the directors, who become trustees in name, upon the dissolution of the company, can successfully invoke the statute, may this not be done by their ministerial agents, their mere clerks? [1 Morawetz on Pri. Corp., sec. 516.] ”

The court then discussed cases in regard to hank deposits, and shows that they are governed by a different rule.

The courts proceeds (p. 492):

“In Palmer v. Palmer, 36 Mich, 488, Campbell, J., said: ‘If a creditor has the means at all times of making his cause of action perfect'it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact able at any time to bring an action, when he can, by his own act, fix the time of a payment. It is no stretch of language to hold that the cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable.’ ”

In Landis v. Saxton, supra, which, as before stated, was an action against the former secretary of a company, the court held that the five-year Statute of Limitations, and not the ten-year statute, applied.

In the case of Hudson v. Cahoon, 193 Mo. 547, the defendant was authorized by plaintiff to sell lands belonging to the plaintiff, and secured from plaintiff a deed with the name of the grantee blank, the consideration stated therein being $180, and defendant after-wards filled in his own name, sold part of the land for $764.55, and reserved to himself the mineral under the land so sold. Plaintiff brought suit to recover the excess realized by the defendant agent, over and above the amount accounted for, and also to divest out of him the title which he had reserved to himself in the resale, and to vest the same in plaintiff. The question for decision was, whether any Statute of Limitations was applicable to the case, in view of the fact that the relation between the parties was that of trustee and cestui que trust, and if any statute applied, the next question was which statute was applicable to that part of plaintiff’s cause of action wherein he sought to recover the profits- made by the agent. In discussing these questions the court said (p. 560):

“As to the claim for the profits realized by the defendant, a totally different question presents itself. Conceding that the plaintiff was entitled to those profits, the question is whether or not his claim thereto was barred by limitation when this action was brought. . . , The deed from the plaintiff to the defendant and the deed from the defendant to Parks were recorded in 1892. They recited the consideration moving to the grantors. They disclosed on their face the profit alleged to have been received by the defendant from the resale of the lands. The plaintiff was, therefore, charged with notice of. the facts, as of those dates. [Bent v. Priest, 86 Mo. 489.] And the plaintiff would have been entitled to recover the same if he had brought his action at any time within five years from that date. He failed so to do, and, therefore, his action to recover such profits was barred at the time this suit was brought. To avoid this conclusion, the plaintiff claims that the statute does not run against a trust, and that the defendant held the profits as a trustee for the benefit of the plaintiff. The statute does not run against express .trusts; but an express trust is a trust created by deed or law, and such is not the character of the trust relied on in this case. It was an implied or constructive trust, and the Statute of Limitations runs against implied or constructive trusts. [Landis v. Saxton, 105 Mo. l. c. 489; Reed v. Painter, 145 Mo. l. c. 356.] It follows that the petition shows on its face that the plaintiff was barred on the right of recovery as to the profits, but that he was not barred of his right of recovery as to the interest in the land, unless by reason of laches now to be considered.”

The case of Elliot v. Landis Machine Co., 236 Mo. 546, does not announce a different rule. In that case the plaintiff sued in equity to follow and recover specific trust property, and the question of an accounting for profits was only incidental to the main relief sought. A suit to follow trust funds must be an equitable proceeding, and not an action at law, and consequently section 1899, Revised Statutes 1909, as previously shown,-does not apply. It is not a suit in the language of the statute, “for relief on the ground of fraud;” nor is it an action to recover a money judgment, except as that is incidental to the main purpose and scope of the bill.

Neither the case of Landis v. Saxton, supra, nor Hudson v. Cahoon, supra, were mentioned in the Elliot-Landis Machine Co. case. The latter case differs materially from the two former in this:

As previously stated the Elliot case was a bill in equity to follow and recover specific trust property, for which no special statute is provided, and consequently falls with section 1888, Revised Statutes 1909; while this case is a suit to recover profits only, money judgment and the claim for relief growing out of the alleged fraud of the defendants, as previously stated, which clearly brings it with the fifth subdivision of the five-year Statute of Limitations.

The case of Newton v. Rebuack, 90 Mo. App. 659, like the Elliot-Landis Machine Co. case, was to follow and recover specific trust property, and it was there properly held that the ten-year statute governed.

Y. It is finally insisted by counsel for appellant, that this action may be maintained because of the saving clause contained in section 1900, Revised Statutes 1909, which provides that the plaintiff may have one year additional time after a nonsuit has been suffered in which to bring the suit over.

This insistence is untenable for the reason, that the appellant did not suffer a nonsuit as a matter of fact, in the former case. The judgment there was a final judgment upon a demurrer to the merits of the cause, as previously held, and not a nonsuit, as insisted by counsel.

We are, therefore, of the opinion that the judgment of the circuit court should he affirmed; and it is so ordered.

All concur.