author: BROWN, C. PER CURIAM.

text:
    JOHN LITSCHGI, Appellant, v. IDA GOTTLIEB et al.
    Division One,
    December 24, 1912.
    FRAUDULENT CONVEYANCE: Failure to Record Deed. A mother, at that time solvent, deeded her home to her daughter in 1901 for a recited consideration of five dollars, and the daughter did not record the deed until November 7, 1905. Meanwhile the mother had become surety on a bond to plaintiff and the principal defaulted about November 1, 1905.- The daughter testified that she failed through oversight to record the deed until her brother-in-law suggested it, and further that she supported the family, and, before and after the conveyance, had cut down a mortgage on the property from $3000 to $750. The execution of the deed is not questioned nor is it claimed that the mother contemplated incurring any indebtedness when it was made. Held, in a suit by the obligee in the bond, that -the failure to record the deed was not in itself such fraud, as ■±o warrant setting it aside.

      Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillin, Judge.
    Affirmed.

      George W. Lubhe and George W. Lubhe, Jr., for appellants.
    (1) The conveyance from Henrietta Gottlieb and her husband to Ida Gottlieb was voluntary as to the grantor’s creditors. Johnson v. Burks, 103 Mo. App. 221. (2) The failure to record the deed until after the liability from Henrietta Gottlieb to plaintiff accrued, coupled with the continued possession of the premises by the grantors, is evidence of fraud in law.' Baker v. Harvey, 133 Mo. 262; Stam v. Smith, 183 Mo. 464; Steward v. Thomas, 35 Mo. 202. (3) The failure and neglect of Ida Gottlieb to record the deed to her gave color to the statement of her brother to-plaintiff that his mother was a real estate owner, on the strength of which plaintiff accepted her as sole surety on the bond of her son. It gave her a credit in the eyes of the plaintiff which otherwise she would not have had. As to plaintiff, therefore, the deed is fraudulent in law. Bank v. King, 123 Mo. 141; Bank v. Doran, 109 Mo. 40; Bank v. Frame, 112 Mo. 515. Nor. was it necessary that Ida Gottlieb should know that credit was being extended to her mother while the deed was being withheld from record in order that the deed be declared fraudulent as to plaintiff. Singer Mfg. Co. v. Stephens, 169 Mo. 1.

      H. A. & C. R. Hamilton for respondents.
    The failure to record a deed does not render the conveyance fraudulent in law as to creditors, where no fraud was intended. It is only when the withholding of the instrument from record gives the grantor a fictitious credit, and someone, on the faith of the apparent ownership, has been misled to bis injury, that such failure to record is fraudulent. 20 Cyc. 446, 447; Bank v. Robrer, 138 Mo. 369; Gentry y. Field, 143 Mo. 399; Hord v. Harlan, 143 Mo. 469; Bank y. New-kirk, 144 Mo. 472; Wall y. Beedy, 161 Mo. 625; Clark v. Lewis, 215 Mo. 173.
   BROWN, C.

For convenience we adopt tbe statement of appellant wbicb seems to fairly present tbe issues.

“This suit was begun in tbe circuit court of tbe city of St. Louis on November 19, 1908, to set aside a deed executed by tbe defendants Henrietta and David Gottlieb, by wbicb they conveyed to tbe defendant Ida Gottlieb a parcel of real estate situated in city block No. 3725, of said city, fronting thirty feet on Page avenue, and improved by tbe residence known as 4463 Page avenue, and to subject tbe property to tbe payment of a judgment for $993.12 interest and costs recovered by tbe plaintiff against tbe defendant • Henrietta Gottlieb on August 7, 1907.

“Tbe petition alleges that on July 17, 1905, tbe defendant Henrietta Gottlieb was tbe owner of tbe property mentioned, and that relying upon tbe fact that she was such owner about that time plaintiff accepted her as surety for William Gottlieb on a bond given to insure tbe faithful performance of a contract between said William Gottlieb and plaintiff to build for plaintiff a dwelling building he was about to erect at that time; that said William Gottlieb defaulted in tbe performance of this contract and abandoned tbe building when it was about half completed and about November 1, 1905, absconded from tbe State of Missouri; that thereafter plaintiff recovered judgment against tbe defendant Henrietta Gottlieb on said bond for $993.12 and costs on August 2, 1907, and that this judgment is final and wholly unsatisfied.

“Tbe petition then allege’s that tbe liability from Henrietta Gottlieb to plaintiff began to accrue in tlie month of September, 1905, and that knowing tbe same, and with intent to binder and defraud ber creditors, particularly tbe plaintiff, said defendant caused to be recorded in tbe recorder’s office of said city, on November 7, 1905, a deed of conveyance by wbicb she pretended to convey to tbe defendant Ida Gottlieb tbe property mentioned for a pretended consideration of five dollars, wbicb conveyance is dated December 3, 1901, and purports to be acknowledged before said William Gottlieb, as notary public, on December 4, 1901, nearly four years before it was recorded; that notwithstanding said conveyance tbe defendant Henrietta Gottlieb continued and continues to remain in possession of said property and enjoy tbe use and benefits of tbe same with tbe consent and knowledge of tbe defendant Ida Gottlieb and that tbe value of tbe same is forty-five hundred dollars; that tbe defendant Henrietta Gottlieb is insolvent and that unless said property can be reached and applied to tbe payment of said judgment tbe same must remain unsatisfied.

“Tbe petition then prays that tbe conveyance be set aside as fraudulent and void and that tbe property be ordered sold for tbe payment of said judgment, that tbe defendants in tbe meantime be enjoined from selling or disposing of tbe property and for all other suitable equitable relief.

“Tbe answer of tbe defendant Ida Gottlieb set up that tbe property in question was acquired by Henrietta Gottlieb long prior to December 3,1901, and bad been occupied by ber and ber husband as a homestead; that it bad always been encumbered and that at no time was tbe equity of redemption of Henrietta Gott-lieb therein worth tbe sum of three thousand dollars and that it was exempt from execution; that prior to Decémber, 1901, she bad advanced to Henrietta Gott-lieb various sums of money used to make payments on existing encumbrances on said property, and that in consideration of said advances Henrietta Gottlieb had conveyed to her the property in good faith and that she had acquired the same without notice that any one, other than Henrietta Gottlieb, had or claimed any interest in it.

“The answer of the defendants Henrietta Gott-lieb and David Gottlieb was a general denial and a plea that the property was exempt as a homestead to the defendant Henrietta Gottlieb; that the defendant David Gottlieb had never claimed any homestead; and that the creditors of said Henrietta Gottlieb had and have no right to subject the property to the payment of their claims.

‘ ‘ The plaintiff put in issue all the new matter set up in the answers of the defendants respectively by replies denying generally all the allegations of such new matter.

“The evidence at the trial of the case before the Hon. Eugene McQuillin, judge of said court, showed that the property in question was acquired by the defendant Henrietta Gottlieb in 1893; that in 1905 the plaintiff entered into a contract with William Gott-lieb, son of Henrietta Gottlieb, to erect a dwelling building for him; that as a condition of entering into the contract plaintiff required a bond of said William Gottlieb for the faithful performance of it and Gott-lieb offered to give bond with his mother, who he represented owned real estate, as surety, and that thereupon the contract was entered into and the bond was given; that suit was afterwards brought on this bond by plaintiff and judgment rendered against her for the penalty of it, to be satisfied on payment of. $993.12 and costs on August 2, 1907.

“That in the early part of November, 1905, when plaintiff’s building was only partly finished, William Gottlieb abandoned the same and absconded from the State of Missouri because his financial affairs had become involved; that within a short time after he had absconded, on November 7, 1905, the deed from Henrietta Gottlieb and David, her husband, to her daughter, Ida Gottlieb, which is sought to be set aside in this proceeding, was recorded. This deed recites a consideration of five dollars, is dated December 3, 1901, and was acknowledged before said William Gott-lieb, as notary public, on December 4, 1901, nearly four years before it was recorded. The property at the date of the conveyance and since that date was admitted to be worth $4200 irrespective of the incum-brances on it.

“With respect to the consideration for the conveyance the defendant Henrietta Gottlieb testified that the five dollars recited in it was paid at the time the deed was made. The defendant Ida Gottliéb, however, testified that she was not present at the time the deed was made. Both these defendants testified that after the deed was made it was kept in a safe deposit box in the Lincoln Trust Company to which they and David Gottlieb had access, and that when this box was given up about the time of the World’s Pair in 1904, the deed was taken to their home and kept in a tin box there. Ida Gottlieb testified that it did not occur to her to record the deed and that it was an oversight that it was not recorded until it was recorded; that in November, 1905, after her brother William had left, her brother-in-law came to the house, knowing that William was in financial trouble, and looked over the papers they had there and saw this deed and suggested that it be recorded.

“There was a deed of trust to secure $3000 against the property dated January 21, 1900. Ida Gottlieb testified that both before and after the date of the conveyance she was accustomend to turn over to her mother her earnings as school teacher and with these the family was supported and the incumbrance on the property reduced by her mother,- that there was no difference in the' way the property was occupied and the payments made on the incumbrance and the taxes paid after the conveyance than before; that at the date of the conveyance a balance of $2800 remained unpaid on the deed of trust and that in the period that the deed was withheld from record this balance due was reduced to $1000; that thereafter the balance was still further -reduced to $750.

‘ ‘ The evidence also showed that the property was always occupied by the defendants, David Gottlieb and his wife, Henrietta Gottlieb, and their children, and that the defendant David Gottlieb -had no property. ’ ’

It will be seen from the foregoing statement that the execution of the deed attacked in this suit is not questioned, either in the pleadings or evidence. Nor is it questioned that at the time of its execution in 1901, Miss Gottlieb, who was a school teacher in the public schools of the city of St. Louis, was devoting her entire earning capacity to the support of her father and mother, who were both nonproducing, and to the payment of the incumbrance on the lot, which, at the time of the trial, she had reduced from $3000 to $750. Nor is it claimed that Mrs. Gottlieb contemplated incurring any indebtedness other than that represented by the mortgage on her home at the time the deed to her daughter was made. That the arrangement represented by this deed was highly beneficial to the elder Gottliebs, and imposed a great burden upon the daughter, is self- evident; but it is claimed that the failure of Miss Gottlieb to record it for nearly four years after it was made was in itself such a fraud as vitiated the entire transaction designed as a provision for the parents and imposed upon the daughter the application of her earnings to the payment of her mother’s indebtedness subsequently contracted.

While the failure to record a deed may he one of the steps in the scheme by which the grantee seeks to give the grantor a fictitious credit to be used for fraudulent purposes, so that one who becomes a victim • of the deception may be relieved against it, there is in this case, it will be observed, an utter absence of evidence of fraudulent design in the beginning, or of any deception operating to the injury of the plaintiff in the end. The grantor was solvent, and the execution of the deed’ was evidently a part of a plan by which she hoped to be able to remain in that honorable and comfortable condition. It is not claimed that the-plaintiff examined the records of deeds, or procured it to be done, before extending the credit implied by accepting her as surety on the bond. Had the deed been duly recorded at the time it was made, the same result would have followed, so far as anything appearing in this case indicates. In Clark v. Lewis, 215 Mo. 173, 189, this court, considering the same question, said:* “Therefore, unless the deed made by Wheelhouse was with the fraudulent intention of contracting further debts, and to avoid the payment of them, it was not fraudulent. Such fraudulent intention may be shown by proof, when available, of the insolvency of the grantor at the time of the conveyance, or though solvent, that he was rendered insolvent by reason of the conveyance.” There being no evidence in this case of actual fraud or fraudulent intent shown on the part of Mrs. Gottlieb at the time-of the execution of the deed to her daughter, either as to existing or future indebtedness, the court was right in refusing to subject the property to the payment of the plaintiff’s debt. It follows that'the judgment of the circuit court must be affirmed, and it is so ordered.

PER CURIAM.

The foregoing opinion of BítowN, C., is adopted as the opinion of the court. All the judges concur.


source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    JOHN H. BLAIR, Appellant, v. ANNIE E. BLAIR.
    Division One,
    December 24, 1912.
    1. RES ADJUDICATA: Land Titles: In Divorce Decree. Where the ownership of a certain tract of land - was considered in the divorce trial in the mere incidental matter of adjudging alimony, and it was assumed that the husband’s money bought the land whose title was taken in the wife, yet if the decree therein did not attempt to adjudicate the title* and did not say whether it belonged to the husband or wife, it was not an adjudication that the husband’s money bought the land, and is not res adjudicate, of the title in a suit by the husband to have a resulting trust declared in his favor, the ownership of the land not being a question directly in issue in the divorce suit but considered only for the purpose of arriving at a just alimony.
    2. RESULTING TRUST: Deference to Chancellor. Where the title was placed in the wife at the time the property was bought, and the husband testified that it was bought with his wife’s money but that she agreed to let him have it because he had paid for the home place which was deeded to her, and she denied this, and testified that she received $8,000 from relatives which came to her hands prior to the purchase of the land, the court will defer to the chancellor, who had the witnesses before him, and adjudged that it was the wife’s money that was used to buy the land.
    Appeal from Auclrain Circuit Court. — Ron. James D. Barnett, Judge.
    AnnntMED.

      Joseph E. Blair pro se.

    (1) Appellant paid the purchase money for the land, and thereby a resulting trust arose in his favor. The presumption in favor of an advancement where the land is paid for by the husband and conveyance is made to the wife, is a presumption of fact and not of law, and may therefore be rebutted by evidence showing that at the time of the conveyance it was the intention of the husband that the wife should not take a beneficial interest. Price v. Kane, 112 Mo. 412; Darrier v. Darrier, 58 Mo. 222; Hall v. Hall, 107 Mo. 109; Siebold v. Christman, 7 Mo. App. 254; Viers v. Yiexs, 17-5 Mo. 444; Case v. Espenscheid, 169 Mo. 215; Curd y. Brown, 148 Mo. 82. And where the wife at the time of the conveyance agrees to hold the property in trust for the husband, who advanced the purchase money, this nega lives the presumed intention on which the presumption rests, and a resulting trust arises in favor of the husband. 15 Am. & Eng. Ency. Law (2 Ed.) 1157. And the fact that the husband took possession of the land, improved it, and paid the taxes thereon is some evidence, of his original intention that the purchase should be in trust for him. Smith v. Strahan, 16 Tex. 314; Maxwell v. Maxwell, 109 Ill. 588; Fery v. Morrison, 159 Ill. 244; Scott v. Calladme, 79 Hun (N. Y.), 79. (2) A party whose money is used in the purchase of land, with or without his consent, becomes the equitable owner thereof. McMurray v. McMurray, 180 Mo. 526; Siling v. Hendrickson, 193 Mo. 365. And although the deed be taken in the name of another, a resulting’ trust is created in favor of the party furnishing the purchase money. Plumb v. Cooper, 121 Mo. 668; Condit v. Maxwell, 142 Mo. 226. And this is so though the title is taken in the name of the grantee with the consent of the person paying the consideration, and though he drew the deed in the name of the nominal grantee himself, and had it placed on record. Condit v. Maxwell, 142 Mo. 275; Lewis v. Wells, 85 Fed. 896; 15 Am. & Eng. Ency. Law (2 Ed.), 1137; Wrightsman v. Rogers, 239 Mo. 417. (3) Resulting trusts may be established by parol evidence. Smith v. Smith, 201 Mo. 545; Heil v. Heil, 184 Mo. 666; Brinkman v. Sunken, 174 Mo. 709; Garrett v. Garrett, 171 Mo. 155; Pitts v. Weakley, 155 Mo. 109. (4) A resulting trust may be established for a proportional part of the land according to the amount paid by the one claiming a resulting trust, and he may have a proportional part of the land set off to him, or the court may render a decree for his proportional share in the land. Crawford v. Jones, 163 Mo. 594. (5) There were practically two judgments in the divorce suit between Annie E. Blair and J. H. Blair, the parties to this suit. One, the judgment of divorce, and the other the judgment as to alimony. The amount of the judgment that should be rendered depended on the property that each party owned, the earning capacity of the defendant in that case, and the property he had given her. Blair v. Blair, 131 Mo. App. 571. Appellant admitted in that case that respondent was the legal owner of the land here in controversy, but claimed that he was the beneficial owner because he had paid the purchase money for the land, and the respondent claimed to be the legal and beneficiary owner because she had paid the purchase money for the land. The St. Louis Court of Appeals in its finding of the facts in that case, found and adjudged that the appellant had paid the consideration, $3500, for the land. This was a final and conclusive adjudication of that fact, which was made an issue in every one of the pleadings, and the evidence, and it cannot again be relitigated, as between the parties, in this or any other proceedings. That question of fact was a material issue in that case and was decided upon its merits. Sec. 2375, R. S. 1909 ; Womack v. St. Joseph, 201 Mo. 490; State ex rel. v. Branch, 134 Mo. 592; 24 Am. & Eng. Ency. Law (2 Ed.), 765, 710; Mason v. Summers, 24 Mo. App. 174; Williams v. Iron Co., 30 Mo. App. 662.

      L. G. Blair and J. I). Hostetter for respondent.
    (1) Where the husband purchases real estate with his own funds and causes the same to be conveyed to his wife, a prima-faeie case is made out that the husband intended the conveyance to be a provision or settlement for the wife and not a resulting trust. This presumption, of course, can be overcome, but in order to do so the evidence must be clear, strong and unequivocal and so definite and positive as to leave no room for doubt in the mind of the chancellor. Yiers v. Yiers, 175 Mo. 453'; Case v. Espenscheid, 169 Mo. 215; Curd v. Brown, 148 Mo. 82; Woodward v. Woodward, 148 Mo. 246; Schuster v. Schuster, 93 Mo. 438; Darries v. Darries, 58 Mo. 226; Derry v. Fielder, 216 Mo. 192; Mondrell v. Riddle, 82 Mo. 31; Rogers v. Rogers, 87 Mo. 257. (2) There can be no resulting-trust in this case, conceding the facts to be as claimed .by Blair in his testimony. He pleads a verbal agreement and relies on it in his testimony. Now if the alleged verbal agreement, which he testified to as having been made between himself add his wife, had been in writing it would have constituted an express trust as distinguished from a resulting trust. Not being-in writing it can not be enforced as an express trust. The terms of the alleged verbal agreement show that it was not a resulting trust, but rather an ineffectual attempt to create an express trust. An express trust is void unless manifested in writing as required by the statute. Heil v. Heil, 184 Mo. 673; Crawley v. Grafton, 193 Mo. 431. (3) Plaintiff’s cause of action is barred by the ten-year Statute of Limitations which runs against a resulting trust. Reed v. Painter, 145 Mo. 356; Landis v. Saxton, 105 Mo. 486; Hudson v. Calhoun, 193 Mo. 547. (4) The judgment of the St. Louis Court of Appeals in the divorce case was not an adjudication of the title to the property in controversy, nor was it an adjudication as to the question as to who paid for the property in controversy so as to shut out the inquiry in the case at bar. The title to the farm in controversy was not in issue in the divorce case, and necessarily by reason of the nature of the suit could not be an issue. It was outside the province of the court in the divorce case to settle anything other than the issues which arose in that «ease. In the determination of the divorce case the ■court had no power to divest title as to the property in controversy, or to invest either, of the litigants with title to any specific property. - The property which -each owned was scheduled only for the purpose of enabling the court to determine the amount of alimony which should he allowed to the wife or whether or not any' alimony at all should he allowed. The question as to who paid for the farm in controversy was not in issue in the divorce case, hut if in issue at all it was only collaterally so. Gwin v. Waggoner, 116 Mo. 151; Hennessy v. Brewing Co., 145 Mo. 115.
   GRAVES, P. J.

Action hy plaintiff to divest defendant of the record title to 100 acres of land in Pike ■county, in value at the present time of $5000' to $6000. Petition in three counts. The first count avers that the plaintiff paid for the land in question with his own funds, and seeks to have a resulting trust declared. By the second count an express agreement is alleged hy the terms of which it is stated that the defendant took the title agreeing to hold the same for the use and benefit of the plaintiff. By the third count a receiver is asked for the property.

In appropriate answer the defendant joined issue on all the matters averred in plaintiff’s petition, and as a further defense invoked the ten-year Statute of Limitations. Defendant also answered to the. effect that the purchase price of the land in question was paid out of her individual and separate funds, and that she was in fact and in law the legal owner thereof.

By reply the plaintiff pleaded that there had been an adjudication of the fact as to whose money was used in the payment for the farm in the case of Blair v. Blair, 131 Mo. App. 571. A reading of that case will thrown some side light upon the present, and obviate a lengthy detail of many things in this ease. Upon a hearing nisi the chancellor found against the plaintiff and dismissed his bill, from which judgment of dismissal and costs, he has appealed. There are but two real questions in the case:

(a) Is the plea of former adjudication good?
(b) . "Whose money paid for this land?

Of these in their order.

I. The question of res adjudicata in this case is thus situated. In 1905 the defendant in this case, Annie E. Blair, sued the plaintiff in the present suit, Joseph H. Blair, for divorce, and as an incident thereto asked for alimony. In July, 1906, the circuit court of Pike county heard this divorce proceeding, and entered its decree granting to Annie E. Blair a divorce from Joseph H. Blair, and also giving her alimony in gross in the sum of $2200 and fifteen dollars per month for the support and maintenance of two minor children. From this decree Mr. Blair appealed to the St. Louis Court of Appeals, and in that court the alimony in gross was, for reasons in the opinion stated, reduced to $1000, and with this modification affirmed. Appellant ’s idea of res adjudicata seems to spring from a certain state of the record in the divorce suit. In the petition for divorce, evidently inserted on the idea of giving the court a basis for fixing alimony, Annie E. Blair used this language: “Plaintiff states that her property consists of the residence property in Bov/ling Green, and one hundred acres of farm land, and with that exception she is without means of support for herself and family and without the means for the prosecution of this suit.” It should be noted that no land is described, and the court is not asked to make any decree as to the land. Turning to Mr. Blair’s answer in the divorce suit we find this language: “He further admits that the legal title to the farm mentioned in said petition is in the plaintiff, but defendant denies that she owns the same or any interest therein, and says that the defendant is the owner of the equitable . title to same.” It should be noted that he describes no land and does not ask the court to enter a decree with reference thereto. Mrs. Blair in the divorce suit replied to the answer, and in the course of such reply used this language: “Now comes the plaintiff in the above entitled cause, and for reply to defendant’s answer herein denies each and every allegation of new matter in said answer contained, except those hereinafter admitted to be true.”

Thus stand the portions of the pleadings in the divorce suit relied upon by the plaintiff in the case at bar. His present abstract of record contains this excerpt from the judgment nisi in the divorce suit:

“ The judgment of the Pike county court in said cause, rendered July 2, 1906, which granted plaintiff in said cause a divorce, alimony and support for the minor children, and in relation to the real estate mentioned in said pleadings found the facts to be as follows: That at the date of the institution of the suit plaintiff’s residence was, and for many years prior thereto; had been in the west portion of Bowling Green, and since the year 1880, in the property owned by the plaintiff in her own right, the title to the same standing and being in plaintiff. And just prior to said separation defendant demanded that plaintiff deed to him a certain farm the legal title to which was in plaintiff, and which plaintiff claimed to own in fee as her own property,
“The motion for a new trial in said cause, filed July 5, 1906, and record showing that it was overruled by the court July 13,1906.
“The mandate of the St. Louis Court of Appeals in said cause, and read in evidence that portion of said court’s judgment and decree as to alimony, and the findings of the facts by said court npon which said decree was based, which is as follows.” ■

Snch abstract also contains the following excerpt from the opinion of the St. Lonis Oonrt of Appeals in the divorce case:

“We take up the question of alimony. Whether or not the court’s allowance is reasonable is to be determined on consideration primarily of the property and earning capacity of the defendant, but with reference, too, to the means owned by his wife in her own right, and particularly that portion of her means which had been given to her by him. [Grolding v. Golding, 74 Mo. 123; 2 Am. & Eng. Ency. Law (2 Ed.) pp. 120 to 123 and citations in notes.] Defendant had invested, say, $3500' of his means in the home place, and the title to which was in his wife. He had also invested the same sum in a farm in the county, which was in her name; that is to say had furnished $7000; if not more, to acquire the properties to which she holds title. Besides this she has some household furniture, cows, and a little money. We estimate his own pos- . sessions as follows: A half interest in three buildings, $900; two-thirds interest in abstract books, $3000; law library, $300; four horses, $300; one note, $260; cash, $800; other personal property, $200; total, $5760'. Such is our maximum valuation of his holdings after careful attention to the testimony bearing on the question. The defendant is fifty-eight years old, utterly broken in health, unable to practice his profession, and the income from the abstract business is very small. In fact, the testimony is that for three or four years past the income has not been enough to pay the expenses of keeping them up — had not been quite four hundred dollars per annum. Defendant is manifestly near the end of his earning capacity and to pay a judgment of $2200 and then fifteen dollars a month for the support of the minor children, will probably be beyond his power. To compel him to raise such a sum will reduce Mm, in our opinion, to absolute penury. Considering tbe property belonging to plaintiff wMch be paid for, it looks too 'harsh to force a payment out of bis present means of $2200'. Tbe allowance of fifteen dollars a month for tbe two minor children is reasonable. It is to be remarked that these children, as well as tbe older ones, were left some means by a relative. Tbe decree will be modified so as to allow plaintiff $1000 in gross and with this modification wifi be affirmed. ’ ’

All those matters were introduced in evidence upon tbe trial of tbe present case in the circuit court, and they furnish tbe basis for tbe claim of res ad judi-cata. We need not discuss tbe question as to whether or not a decree in a divorce proceeding can adjudicate tbe title to land. It is clear from this record that tbe question of tbe title to land was not placed at issue in tbe divorce proceeding. Ownership of land may have been considered in tbe mere incidental matter of alimony, but not in the sense of determining either tbe legal or equitable title thereto. Nor does tbe judgment in tbe divorce ease make any attempt at tbe adjudication of title to the land here in dispute. It is a simple judgment for divorce and alimony. It is, therefore, clear that the decree in tbe divorce case did not undertake to adjudicate tbe rights of either party to the one hundred acres of land incidentally mentioned in tbe pleadings therein. Whether it was tbe land involved in tbe present ease is somewhat a matter of speculation, but however that be, it is clear that neither tbe circuit court nor tbe Court of Appeals undertook to adjudicate land titles, and did not adjudicate land titles.

Plaintiff urges, however, that there is an adjudication of tbe fact that bis money paid for tbe one hundred acres of land mentioned incidentally in tbe divorce case, and that by such adjudication of that fact tbe defendant in tMs case is bound. It may be granted, without deciding the point, that such is the law, yet it would not avail the plaintiff here. The real issue in the divorce case was not tied up with the question of alimony, either temporary or permanent. Alimony is largely incidental to the case, and because the trial court incidentally investigated the property holdings of each party in order to be enlightened upon the question as to what allowance should be made in the way of alimony, it should not be said that the court’s conclusion as to who owns or claims a certain tract of land, should be considered as res adjudicata in a proeeding where that question is one of vital importance, and one going to the very merit of the controversy. So that we say that although it be conceded (a question we do not at this point decide) that under proper issues a decided question of fact may be res adjudicata as to the fact found, yet such rule would have no application in the case at bar. A fact found to be conclusive upon the parties must be a fact “directly in issue’■ in the case decided, and one within the purview of the issues made in such case. [24 Am. & Eng. Ency. Law (2 Ed.), p. 765].

It is clear from the issues stated in the divorce proceeding that the parties were not seriously and forever attempting to settle the fact as to who had paid for the one hundred acres of land incidentally mentioned. As we are impressed, there is nothing in the question of res adjudicata, and that point is therefore ruled against the plaintiff.

II. Reverting now to the fact as to whose money went into this land. Upon this question the evidence is in hopeless conflict as to a. part of the money. As to the major part there is but little dispute that it was Mrs. Blair’s money. Mr. Blair admits this, but says that his wife agreed to let him have this money, because he had paid for the home place which was deeded to her. This Mrs. Blair denies. Mrs. Blair received in all some $8000 from several estates of deceased relatives. Most of it came to her hands prior to the purchase of this land. The trial court was amply justified in finding that all the money came from Mrs. Blair, and we are impressed that the weight of the evidence so shows. At least the trial court had the benefit of seeing and hearing both the parties upon this vital point, and we will yield to his judgment upon the question of credibility. If Mrs. Blair paid the money, her title should not be disturbed, and other ■ questions suggested in the brief can well be omitted. Let the judgment be affirmed. All concur.