author: GANTT, P. J.

text:
    R. M. STEVENSON v. FANNIE B. HAYNES et al., Appellants.
    Division Two,
    May 18, 1909.
    1. RESULTING TRUST: Facts Must Exist at Time of Purchase. A resulting trust in real estate at once arises by operation of law where the purchase money is paid by one person and the legal title is placed in another. But the relationship of trustee and cestui que trust must' result from facts existent at the time of the purchase or anterior thereto, and cannot be established or created by subsequent occurrences. No subsequent transaction, whether of payment or reimbursement of the grantee, can produce a trust in favor of the person furnishing the. money after the grantee has made a purchase with his own money or upon his own credit.
    2. -: -: 'Purchase With Cash and Note. No trust will result to a person who advances purchase money merely as a loan. Haynes bought the land for $3,840, and assumed as part payment a mortgage for $2,200 and accrued interest, leaving a balance of $1,640. This he paid with $500 cash, his commission of two per cent and the accrued interest on the mortgage debt, amounting to $132, and by giving his note for $970 due in six months, which he paid within the three days of grace, and died two days later. On the day the deed was made he drew a draft on plaintiff for $1,640, the proceeds of which were placed to his credit in the bank, and three days later he sent his note to plaintiff, due in six months, to cover the amount of draft. Held, that Haynes made the purchase with his own money and credit; that even if the $500 paid in cash was a part of the $1,640 draft, there could be a resulting trust for only $500; but as Haynes gave his note for the $1,640, it was prima-facie at least, a loan, and the money belonged to Haynes and the note to plaintiff, and no resulting trust in the land has been shown by clear, cogent and satisfactory proof.
    3. EXPRESS TRUST: Half Interest: Taking Note for Whole: Memorandum. An express trust that plaintiff owns a half interest in the land is not shown by the facts that the grantee on the day of the purchase drew his draft upon plaintiff for the entire amount of the purchase money and three days later sent him his note for that amount and three days later gave him a memorandum reciting “you own a one-half interest" in the land “bought by me, and for which you furnish the money to pay for same.” The keeping of the note for the entire purchase price is irreconcilable with the claim that plaintiff furnished any of the purchase money; besides, the memorandum does not say that he had furnished the money, but taken in its entirety it means that plaintiff was to have a half interest when he did furnish the money, and therefore the grantee’s heirs are not estopped by the recital in the memorandum that “you own a half interest.”
    4. LIEN: Borrowed Money. The money with which the land was bought having been borrowed by the grantee from plaintiff, as evidenced by a promissory note for the amount, plaintiff is not entitled to a lien on the land to satisfy the loan.
    Appeal from Nodaway Circuit Court. — No». Win. C. Ellison, Judge.
    Reversed (with directions).

      Anthony & Ford and L. G. Cook for appellants.
    (1) The trust declared on is an express trust and must be proved by writing. Hillman v. Allen, 145 Mo. 638. (2) A resulting trust must be coeval with the making of the deeds. Niver v. Crane, 98 N. T. 40. (3) And must be proved beyond a reasonable doubt. Stnith v. Smith, 201 Mo. 547. (4) No trust will result for the person who advances the money as a loan. 1 Leading Cas. in Eq. (4 Am. Ed.), p. 323. (5) And the fact that the lender was to share in the profits of the rents and increased price on sale would not create a trust. 15 Am. and Eng. Ency. La'w (2 Ed.), 1150. (6) The person advancing the money does not even acquire a lien on the land purchased.

      Joseph H. Sayler and Shinabargar, Blagg é Ellison for respondent.
    The evidence, and particularly the memorandum letter, “Exhibit B,” proves the existence of an express, trust, (a) An express trust need not be created in writing, but is required only to be manifested and proven by some writing signed by the party who is, or shall he, by law enabled to declare snch trust. Sec. 3416, R. S. 1899. (b) A subsequent writing meets the requirements of the statute, if sufficient in its contents, even though the trust was created in parol. 28 Am. and Eng. Ency. Law (2 Ed.) 873; Lane v. Ewing, 31 Mo. 75; Cornelius v. Smith, 55 Mo. 528; Rogers v. Ramey, 137 Mo. 607; Hillman v. Allen, 145 Mo. 638; Mt. Calvary Church v. Albers, 174 Mo. 340'; Poster v. Hale, 3 Yes. Jr. 696; Randall v. Margan, 12 Yes. Jr. 67; Smith v. Matthews, 3 D. & G. P. & J. 139; Ransdel v. Moore, 153 Ind. 401. (c) No particular form of words is necessary in a writing to prove an express trust. Heil v. Heil, 184 Mo. 665. (d) The writing-expressing the trust may be in several separate instruments. 28 Am. and Eng. Ency. Law (2 Ed.), 879-80. (e) Or in the form of a letter. 28 Am. and Eng. Ency. Law (2 Ed.), 880; Moore v. Pickett, 62 111. 158. (f) The instrument, “Exhibit B,” is sufficient in its contents to prove an express trust. Stratton v. Edwards, 174 Mass. 374; Dorr v. Clapp, 160 Mass. 538; Kentner v. Jones, 122 Ind. 148; Dexter v. MacDonald, 196 Mo. 373.
   GANTT, P. J.

This is an appeal from a decree of the circuit court of Nodaway county. The suit was begun on the 19th of January, 1905. The defendants are the widow and minor son of Tennie E. Haynes, deceased, and the administrator of said deceased, and a tenant of the real estate involved in the litigation.

The petition in substance states that on or about the 27th day of August, 1903, during the lifetime of Tennie E. Haynes, the plaintiff and said Haynes for the purpose of speculation bought from Ada and Fred E. Crawford for the consideration of $3,840 the southeast quarter of the southwest quarter of section 10, and the northeast quarter of the southwest quarter of said section except sixteen acres off of the west side thereof, in township 63, range 37, in Nodaway county; that by agreement between the plaintiff and said Tennie E. Haynes, for convenience in selling and disposing of the legal title to said land, the legal title to the same was taken in the name of the said Tennie E. Haynes; that at the time of the said purchase, there was a mortgage on said land dated December 19, 1902, in favor of C. M. Barber, for the sum of $2,200, with six per cent interest thereon, which said mortgage was assumed as a part of the consideration for said land, and that the same is now an existing lien upon said land, no part of the principal or interest having been paid since the purchase of said land as aforesaid. Plaintiff further stated that it was agreed by and between plaintiff and said Tennie Haynes that plaintiff was to furnish the money to pay said Crawfords the sum of $1,640, which plaintiff did furnish, and the same was paid to said Ada and Fred Crawford, which sum was upon the sale of said land to be repaid to plaintiff first out of the proceeds of said sale with six per cent interest thereon from the date of the purchase as aforesaid; that it was further agreed that upon the sale of said land, after the payment of the said mortgage and the interest thereon, and the said sum of $1,640 with interest, and the taxes assessed, the remaining net profits were to be. equally divided between the plaintiff and said Tennie Haynes. Plaintiff states that the said land was purchased for speculation only and that said Tennie Haynes paid no part of the consideration therefor, the plaintiff furnishing all of the said purchase money and the said Tennie Haynes had no further or greater interest in said land than the one-half of the net profits of the rents received and the increased price upon the sale paid for the same with interest and taxes. Plaintiff states that the said Tennie Haynes died without making any provision by will or otherwise whereby plaintiff’s interest in said land might be conveyed to plaintiff, and with the legal title remaining in said Tennie Haynes.

Plaintiff further stated that the defendant Bilby, as administrator, has made application to the probate court asking for an order of sale of said real estate as being the sole property of the said Tennie Haynes, deceased, for the purpose of paying the debts due and owing by said estate and that plaintiff will be in great danger of losing his said land and his interest therein unless said administrator be enjoined from selling the same. The prayer of the petition was for an injunction prohibiting the defendant, administrator, and any of the defendants, from selling the said land, that upon final hearing the court would order and decree the title should be divested out of the estate of said Tennie Haynes and the same vested in plaintiff, or that the said sum of $1,640 with interest thereon at six per cent per annum until the 27th of August, 1903, be declared a special lien against said land subject to the said mortgage of $2,200 as aforesaid. That the said land be sold subject to said mortgage of $2,200 and of the proceeds of said sale and rents, of which rents plaintiff prayed for an accounting, the sum of $1,640 with interest at six per cent from said date of purchase be first paid, and that the interest on said $2,200 mortgage and taxes and the cost of this proceeding be fully paid and that the remaining portion, if any, be equally divided between plaintiff and the estate of the said deceased, and for all proper decrees.

The answer was a general denial by all the defendants.

There is little dispute as to the facts in the case. On the 27th of August, 1903, Tennie E. Haynes purchased the real estate involved in this action from Ada and Fred Crawford for the consideration of $3,840 and as a part of said consideration assumed a mortgage of $2,200, leaving an actual cash consideration of $1,640. From this cash consideration Haynes deducted $132 interest then due on the mortgage and also his commission for making the sale, leaving $1,470, which was paid, $500.00'in cash, and for the balance $970 Haynes gave his individual promissory note payable March 1, 1904. On the date of this purchase, August 27, 1903, Haynes drew a sight draft on R. M. Stevenson, Tarldo, Missouri, which was paid on that day by the Farmers Bank of Skidmore, Missouri, and the money deposited to the credit of Haynes. Three days later, September 1, 1903, Haynes sent to Stevenson, Haynes’s promissory note for $1,640, due March 1, 1904, to cover the money paid on the sight draft.

There appears in the evidence also the following exhibit:

“R. M. Stevenson, you own a one-half interest in the Ada Crawford, bought by me August 27, 1903, and for which you furnish the money to pay for same. T. E. Haynes.
“September 3, 1903.”

Haynes died March 4, 1904, with the title -of the' land still in him, and leaving his note to Stevenson for $1,640' unpaid and the said note was still held' by Stevenson at the time of the trial of this cause.

Fred E. Crawford testified that he acted as the agent of Ada R. Cra'wford in the sale of this land to Haynes on the terms above set out. That on December 28, 1903, Stevenson wrote witness that “the interest on your loan was due December 15, $132. Please send this and oblige. Yours truly, R. M. Stevenson.” This was the interest on the $2,200 mortgage.

J. D. Montgomery testified that he was acquainted with Stevenson and Haynes; that sometime in June, 1904, he had a conversation with Stevenson in which the latter said he had no interest in the land mentioned in the suit. This conversation occurred in Stevenson’s bank at Tarkio in the presence of Mrs. Haynes. "Witness did not know anything of the exhibit above set out, of September 3, 1903. Mrs. Haynes also testified that she was present with Mr. Montgomery and heard the plaintiff state that he had no interest in the land at all.

Eilhy, the administrator, testified that he had a conversation with the plaintiff about Mr. Haynes’s affairs, and among other things plaintiff said he had Haynes’s note for the Crawford land. ‘ ‘ I asked him in regard to the Crawford land, and he said: I have his note for that for $1,640.” Plaintiff had this note at the time that he had another claim for $2,025.00 against the estate for probate. He showed the two to the administrator and the probate judge, and the judge asked him why he did not probate that note for $1,640, and he answered: “I ain’t ready.”

The plaintiff, Stevenson, testified in his own behalf in regard to the conversation with Mr. Montgomery and Mrs. Haynes in the bank at Tarkio. He says that he told them that he did not know just where he stood or what interest he would have in the Crawford land; that he had paid for it, but that Mr. Haynes had made the deed to himself, and' that he had taken a note for it, and he had not looked into it yet enough to know just what his standing or what interest, he had in it; that he had paid for that land, but that Mr. Haynes had made the deed to himself, thinking he would sell it pretty quick, and had just sent him his note, given him his note for the land, and did not know just what his interest would be in it, yet. He denied that he told them that he had no interest, but did tell them that he did not know just how his interest would appear in this land. In regard to the conversation with Mr. Bilby he said the conversation was just about as Bilby stated it; that he told him he had paid for this land and had the note and did not probate it because he thought he would like to hold the land; that he took the note from Haynes and held it until after his death, and still held it at the time of the trial. The note was dated a few days later than the purchase. On recross-examination he stated that he took the note for the money.

This was in substance all the testimony in the case.

I. It is at once obvious that the decree of the circuit court must stand upon the proposition that the transaction by which Tennie E. Haynes obtained the title to Mrs. Ada Crawford’s land created a trust in said Haynes for -the benefit of plaintiff as to an undivided one-half of said land, subject to the prior mortgage of Barber therein. Was this a resulting trust by reason of plaintiff having furnished the purchase money for said land? It was long ago ruled in this court, in Kelly v. Johnson, 28 Mo. 249, that a resulting trust arises by operation of law where the purchase money of real estate is paid by one person and the legal title is transferred to another and the relation of trustee and cestui que trust in such cases must result from the facts as they exist at the time of or anterior to the purchase, and cannot be created by subsequent occurrences. [Shaw v. Shaw, 86 Mo. 594.]

This doctrine that the trust in order to exist must have been coeval with the deeds and that after one person has made a purchase with his own money or credit, no subsequent transaction, whether of payment or reimbursement, can produce such a trust in his favor, is well settled in other jurisdictions’.

Chancellor Kent, in Botsford v. Burr, 2 Johns. Ch. 404, said: “If A purchases an estate with his own money, and takes the deed in the name of B, a trust results to A, because, he paid the money. The whole foundation of the trust is the payment of the money, and that must be clearly proved. [Willis v. Willis, 2 Atk. 71.] If, therefore, the party who sets up a resulting trust made no payment, he cannot be permitted to show, by parol proof, that the purchase was made for his benefit, or on his account. This would be to overturn the Statute of Frauds; and so it was ruled by Lord Keeper Henley in the case of Bartlett v. Pickersgill, 4 East 577, note. [Hughes v. Moore, 7 Cranch, 176.] .... Nor would a subsequent advance of money to the purchaser, after the purchase is thus complete and ended, alter the case.”

It appears from the testimony of Mr. Fred Crawford, that he acted as the agent of his wife, Mrs. Ada Crawford, in selling these lands to Tennie E. Haynes; that on the 27th of August, 1903, his wife and himself made their deed to this land to Haynes for $3,840; that Haynes paid on that day $500 cash, and gave his note for $970 of that date due March 1, 1904, bearing eight per cent interest, after maturity, which note was paid within the three days of grace, or on March 2,1904, by Haynes. Haynes assumed a mortgage of $2,200 with six per cent interest and this was deducted out of the $3,840, the purchase price. After taking out the mortgage there was a balance of $1,640, and from this was next deducted $132 interest accrued' or to accrue in December of that year. Haynes was allowed two per cent commission on the sale which was also deducted. Haynes died two days after paying the $970 note. To support his claim that he furnished the money to pay for this land, plaintiff introduced the draft for $1,640 drawn by Haynes on plaintiff August 27,1903, the day the land was purchased and conveyed to Haynes by Mrs. Crawford. The proceeds of this draft were placed to the credit of Haynes by the Bank of Skidmore on that date. Three days later, September 1, 1903, Haynes sent plaintiff his note for $1,640 due March 1, 1904, to cover the amount of the draft. It would appear that plaintiff attaches importance to the fact that Haynes drew his draft for the amount of the purchase money over and above the mortgage which he assumed. But inasmuch as he paid only $500 cash, and gave his note for $970, there was no pressing necessity for $1,640 to complete the purchase, but if he had been required to pay the whole amount over and above the mortgage, he would only have required $1,470, as, by the terms of his contract with Crawford, he was allowed to deduct the $132 accrued interest, and two per cent commission on the sale. So that the fact that the draft was for $1,640 loses its significance in the light of these additional facts.

Applying the principles already announced to these facts it is clear that Haynes paid a portion of the purchase price with his own money, his commission of two per cent, and with his own credit, his note for $970. Only $500 was paid in cash and if any trust resulted it could not have exceeded $500, and then only if the $500 was plaintiff’s money. There is no suggestion that the $500 was furnished other than as a part of the $1,640, and if furnished by plaintiff it could only have been as a part of that sum. But if it was, then the further fact appears that Playnes gave his note to plaintiff for the whole $1,640, and prima-facie, at least, this money belonged to Haynes, and the note, to plaintiff, and hence was a loan and not a trust fund. It was held in Bartlett v. Piekersgill, 1 Eden 516, that no trust will result to a person who advances purchase money merely as a loan. [1 "White & Tudor, Lead. Cases in Equity (4 Amer. Ed.), 323.] As plaintiff did not and could not testify, there is nothing to rehut the primafacie case that the $1,640 was a loan from plaintiff to defendant as evidenced by Haynes’s note to plaintiff for the amount, and not a trust. Moreover, it is the settled doctrine that the proofs to sustain a resulting trust must be clear, cogent and satisfying, and this evidence falls far short of that character of testimony. Our conclusion on this aspect of the case is that plaintiff cannot recover on the theory that a trust resulted to plaintiff by reason of having paid the purchase money for the land in suit.

II. But it is evident that the trust declared on is an express trust, to-wit, that plaintiff should and did furnish the whole of the purchase money and that the land should be sold and out of the proceeds the purchase money so advanced, together with interest thereon at the rate of six per cent per annum from the date of purchase to the date of sale, should first be refunded to plaintiff, and that upon the sale of the land the $2,200 and interest secured by the mortgage should next be paid, and then the taxes, and the remaining net profits divided equally between Haynes and plaintiff. In support of this contention, it is insisted that the memorandum of date September 3, 1903, fully establishes this express trust. That memorandum is in these words:

“E. M. Stevenson, you own a one-half interest in the Ada Crawford bought by me August 27th, 1903, and for which yon furnish the money to pay for same.
“T. E. Haynes.”
“Sept. 3rd, 1903.”

Conceding that the word “land” may be supplied in this memorandum in spite of the Statute of Frauds, does it evidence such an express trust as that alleged by plaintiff in his petition? The query at once arises: if this purchase was made in pursuance of the alleged agreement and with the money represented by the draft, and plaintiff, in equity, was the owner of an undivided one-half interest in said land and .held this memorandum of September 3rd, 1903, showing that fact, why did plaintiff take Haynes’s note for the plaintiff’s half of said purchase money with which said half interest was purchased, in addition to the money he furnished Haynes with which to buy the latter’s half?

If plaintiff was to furnish all the money, why take Haynes’s note at all? Why did he not take a declaration of trust reciting the advancement of the money for that purchase to Haynes? Why, if the land had been purchased in pursuance of such express agreement, did plaintiff in the presence of J. D. Montgomery, Mrs. Haynes and Bilby, the administrator, at Tarkio, disclaim all interest in the land? According to his own evidence, he says he told them he didn’t .know what his interest would be in the land or just how his interest would appear in this land. If the agreement was that he was to furnish the money and have half of the net proceeds, certainly it would have been an easy matter to have so told them. When he showed the note for $1,640' to the administrator and probate judge, he was asked why he did not probate it, he replied “he wasn’t ready yet.” His account of that conversation is that he told the administrator just about as the administrator testified; that he had paid for the land and had the note for that, and didn’t probate it because he thought he would lilce to hold the land, but he held on to the note even at the time of the trial of this cause. The least that can be said is that his statements did not indicate that he had an express agreement that he was the owner in equity of one half of this land and was to receive one-half of the profits thereof on a sale. On the contrary he was groping in the dark as to what Ms rights were, if any, against this land, and in what form he should assert a claim. When asked directly by the administrator in regard to this Crawford land, he simply said: “I have his [Haynes’s] note for that.” He did not exhibit the memorandum to the administrator, or widow, and make the claim which he now asserts in this suit. There is, in fact, no explanation of his possession of this memorandum, how or when he received it. But plaintiff insists that it is sufficient in and of itself to prove the express trust averred in his bill.

It is true the statute does not require the trust to be created by the writing, but only that it shall be manifested and proved by a writing signed by the party who declared the trust. [Sec. 3416, R. S. 1899.] Plaintiff in his abstract of this memorandum makes it read r “R. M. Stevenson, you. own a one-half interest in the Ada Crawford (land) bought by me August 27, 1903, and for which you furnished the money to pay for the same.” Whereas the memorandum says: “for which you furnish the money to pay for same.” In other words this instrument can most properly be construed as an option to plaintiff that he may have a one-half interest in said land, if he will furnish the money to pay for the same. It recites that Haynes had bought it, hot that he and Stevenson had bought it. What reply plaintiff made to this offer, if any, we are not advised, but judging from plaintiff’s statement to the widow, administrator, and Mr. Montgomery, he had never accepted the offer, or agreed to accept the half and pay the purchase money therefor, but preferred to hold his note for the money loaned. According to his own testimony he was in doubt what attitude he should assume in respect to the matter. In his bill he elects to ask a half of'the net profits .after a return of Ne bun subject to the mortgage. In our opinion flu f ■''' u-of the note for $1,640 and the. retention of the same at the time of the trial is utterly irreconcilable with the claim that plaintiff furnished any of the purchase money for this land, and failing to do so, the estate of Mr. Haynes is not estopped by the memorandum in so far as it states that plaintiff owned a half interest in the land, since taken altogether it clearly meant plaintiff should furnish the money to pay for said interest as a condition to such ownership, which he never did.

There is moreover absolutely no evidence of any prior agreement between plaintiff and Haynes to purchase this land on their joint account and that it was so purchased with the money of plaintiff.

On the contrary, the proof largely preponderates in favor of the view that Haynes purchased the land for himself and subsequently made the offer to plaintiff that if he, plaintiff, would furnish the money, Haynes would let him become the owner of one-half. The authorities cited by plaintiff, Stratton v. Edwards, 174 Mass. 374; Dorr v. Clapp, 160 Mass. 538, and Kintner v. Jones, 122 Ind. 148, were all cases in which the trusts were well defined and manifested by writings. The facts in each clearly distinguished them from the facts of this case. Dexter v. MacDonald, 196 Mo. 373, in no manner militates against the views we have hereinbefore expressed as to the construction of the memorandum on which plaintiff relies.

Against the contention of plaintiff that this memorandum clearly evidenced an expressed trust, stands the unequivocal promise of the deceased, Mr. Haynes, in his promissory note to plaintiff for the $1,640, an undertaking utterly irreconcilable with the claim that he was borrowing only $820 of plaintiff to pay for one half of this land and that plaintiff was furnishing $820 ito pay for his own share therein. The evidence strongly tends to prove a loan of $1,640 by plaintiff to Haynes and a subsequent offer, by the memorandum, to plaintiff to share the transaction with him, which offer was never accepted by plaintiff, and that plaintiff never claimed that he had any interest in this land, but expressly disclaimed any until this suit was commenced. It may be remarked further that the mere fact that plaintiff loaned the $1,640 to Haynes and that Haynes used a part thereof in the purchase of the land does not entitle plaintiff to a lien on the land.

In our opinion the plaintiff did not establish the trust alleged in his petition and the circuit court erred in decreeing him one-half of said land and a lien for one-half of the purchase money and interest on the other half.

The judgment of the circuit court is reversed with directions to dismiss the bill.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    CALOWAY ROGERS, Appellant, v. ELI WILSON.
    Division Two,
    May 18, 1909.
    1. SHERIFF’S SALE: Set Aside for Irregularity: Premature Return. A sheriff’s sale under a transcript judgment from a justice of the peace may be set aside in a suit brought for that purpose, for an irregularity in the proceedings had prior to the sale, including the premature return of the execution by the constable.
    2. EXECUTION: Premature Return: Before Ninety Days: Sheriff’s Sale. A return by the constable of an execution of nulla bona in less than ninety days after its issuance by the justice is premature and void; and a sheriff’s sale thereafter made under a transcript judgment may be set aside. So that where the judgment in the justice’s court was rendered on December 2, 1899, and execution issued on that day, and was returned, “I hereby certify that I served the within execution Dec. 8th, 1899,” underneath which was written: “Now on this 1st day of March, 1900, this execution is returned by me not 'satisfied, for the reason no property belonging to defendant could be found subject to execution,” the return shows on its face and by the testimony of the constable that the execution was not in the constable’s hands for ninety days, but in the hands of the justice, and therefore the return was premature and void. When the execution was returned to the justice on December 8th it then became functus officio, and the only way it could be legally returned to the constable thereafter was by being renewed in the manner provided by statute (Sec. 4038, R. S. 1899).
    Appeal from Douglas Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and' remanded.

      Burkhectd <& Clarke for appellant.
    An execution from a justice court returned on the eighty-ninth day is premature. The right to a transcript execution depends on the justice’s execution and a nulla bona return at the expiration of ninety days. Huhn v. Long, 122 Mo. 605. “Not satisfied” (“I hereby certify that I served within execution”) are not synonymous with nulla bona, and does not answer the requirements of the statute, Sec. 6287, R. S. 1889, Sec. 4019, R. S. 1899. The constable must make a thorough search for property of the execution debtor whereof to make the levy. And such return does not authorize an execution from the circuit court, and a sale by the sheriff thereunder does not convey execution debtor’s title. Langford v. Few, 146 Mo. 142; Reed v. Lowe,. 168 Mo. 519; Johnson v. Laido, 84 Mo. 142. The burden was on defendant to show that the justice’s execution had been returned at the end of ninety days with the proper nulla bona thereon. Reed v. Lowe, 163 Mo. 519. The return of the constable on the execution must show search was made with execution up to return day. Reed v. Lowe, 163 Mo. 519; Langford v. Few, 146 Mo. 142; Huhn v. Long, 122 Mo. 600, 117 Mo. 103; Cummings v. Brown, 181 Mo. 711; Marks v. Hardy, 86 Mo. 232.
   BURGESS, J.

This is an action to set aside a sheriff’s deed, made March 30, 1901, conveying to defendant a small parcel of land in Douglas county, Missouri. The levy and sale were made by virtue of a transcript execution issued out of the circuit court of Douglas county on March 6, 1901, based upon a justice’s transcript of a judgment by default rendered by him against the plaintiff in this suit on December 2, 1899, and filed in said circuit court on June 27, 1900, upon which judgment the justice issued an execution December 2,1899, returnable in ninety days. Upon this execution the constable made the following return: “I hereby certify that I served within execution Dec. 8th, 1899. For serving execution, $.50.” Underneath this, in pencil, was the following: “Now on this 1st day of March, 1900, this execution is by me returned not satisfied, for the reason that no property belonging to the deft, could be found subject to execution. J. D. Hartley, constable.” The .justice’s transcript was made December 29, 1899, and showed that that execution was returned by the constable on the 8th day of December, 1899.

The court found the issues for the defendant, and rendered judgment against plaintiff for costs. Plaintiff appeals.

The statute (Sec. 4034, R. S. 1899) provides that an execution issued by a justice of the peace shall be directed, except where it is otherwise specially provided, to the constable of the township where the justice resides, and it shall run against the goods and chattels of the person against whom it is issued, and be dated on the day it is issued and be returnable in ninety days from its date.

Sections 4018 and 4019 confer the right upon the person in whose favor the judgment may be to take and file a transcript of the judgment in the office of the clerk of the circuit court, which judgment from the time of filing the transcript becomes a lien upon the real estate of the defendant in the county, as a judgment of the circuit court, but the statute (sec. 4019) provides that “no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, . . . . and returned that the defendant had no goods or chattels whereof to levy the same.”

This being a direct attack upon the validity of the sheriff’s sale, it may be set aside for irregularity in the proceedings had prior thereto, including the premature return of the execution by the constable, if it was premature. It is well settled that an execution issued by a justice of the peace should not be returned before the time fixed by .law, and if it should be it is irregular and invalid.

The execution was issued by the justice on December 2,1899, and made returnable in ninety days. “The time within which an act is to be done should be computed by excluding the first day and including the last. ’ ’ [Huhn v. Lang, 122 Mo. 600.] Excluding December 2, 1899, the day upon which the execution was issued, and including the day upon which, as defendant contends, it was returned, to-wit, March 1, 1900’, the execution, as will be seen, was in the hands of the constable eighty-nine days, the year 19001 not being a leap1 year. But aside from that, the contention of defendant in this regard is not supported by the record. The justice’s docket which was in evidence and the first indorsement upon the execution, made by the constable in his own -handwriting, and signed by him, shows that the execution was returned served by him on the 8th day of December, 1899', which was only six days after its issuance, and the return was therefore premature and void. [Marks v. Hardy, 86 Mo. 232; Himmelberger-Harrison Lumber Co. v. McCabe, 220 Mo. 154.] Having been indorsed served by the constable on the 8th day of December, 1899’, the presumption is that it was served and returned as indicated. He himself testified that he delivered the execution to the justice two or three days after he made said endorsement upon it. When the execution was returned to the justice it then became functus officio, and the only way that it could be legally returned to the hands of the constable thereafter was by being renewed in the manner provided by section 4038, Revised Statutes 18991.

For the reasons indicated the judgment is reversed and the cause remanded.

All concur.


author: GANTT, P. J.-

text:
    JOANNIE FREELAND v. FRANCES WILLIAMSON et al., Appellants.
    Division Two,
    May 18, 1909.
    1. JUDGMENT AS ENTIRETY: Resulting Trust: As to Non-Complaining Parties. In a suit in equity, for instance, a suit by a widow to establish a resulting trust in land on the ground that the deed by mistake vested the legal title in her deceased husband, the doctrine of the entirety of judgments does not apply. It may be upheld as to some of the defendants and reversed as to others. And where a part of the defendants appeal they have no right to have the judgment reversed because some non-complaining defendants were not properly served; and it will not be reversed as to any, if those complaining were properly served and it is right as against them.

      2'. WIFE AS WITNESS. In a suit by a widow to establish a resulting trust in land on the ground that her father furnished the money by which it was purchased and by mistake her deceased husband instead of herself was made the grantee, she is a competent witness. She is a real party in interest, and her testimony does not relate to a contract between her and her husband, but her right depends upon the payment of the money by her father for her benefit, under an agreement between her father and the vendor.
    8. NO OBJECTION TO EVIDENCE. Where an inspection of the record fails to disclose that any objection was made or any exception was saved to the reception of testimony by witnesses as to the contents of letters, objections to such evidence cannot be considered on appeal.
    4. ESTOPPEL. In order to constitute an equitable estoppel there must have been, not only a false representation and concealment of the facts, but th.ey must have been made knowingly by the one to be estopped and believed and acted upon by the one claiming the estoppel. Plaintiff cannot be estopped to set up against the children of her husband a resulting trust in farm land's, by mistake conveyed to her husband instead of to herself, by the fact that certain town lots were purchased by her husband and conveyed to her, if her money paid for the lots, even though there is some evidence that the lots were conveyed to her in satisfaction of all claims by her against her ■ husband.
    5. RESULTING TRUST: Sufficient Evidence. Evidence showing that plaintiff’s father furnished the money that bought the land, that it was bought by him for her, that her husband and all his children knew these facts, that the title was taken in the husband’s name without her knowledge and consent, and that she never discovered that fact until after his death and just prior to bringing the suit, although it had been so deeded thirty-four years before his death and they had resided upon it, clearly establishes a resulting trust in her in a suit against their children.
    <5, -; Limitations: Within Three Years After Disability Removed. Where the deed was made in 1869 to plaintiff’s husband and he died in January, 1903, and she did not discover that it vested the title in him until after his death, a suit brought in August, 1905, to have a resulting trust declared in her favor, was not barred by limitations. She was under legal disability during coverture, and the statute did not begin to run until the knowledge of the conveyance to him came to her.
    7. -: Estoppel: Land Inventoried to Husband. The fact that plaintiff was the administratrix of her husband’s estate and in her inventory listed the land as his, should not have much weight against the clear and undisputed evidence showing the existence of a resulting trust in her favor.
    Appeal from Holt Circuit Court. — Ho». Wm. C. Ellison, Judge.
    Affirmed.

      T. G. Dungan and John W. Stokes for appellants.
    (1) The court erred in making a finding and rendering a decree against all of the defendants, four of whom had not been served with summons or had other legal notice and not appearing in the action. Holt County v. Harmon, 59 Mo. 165; Jasper County v. Wadlow, 82 Mo. 172. (2) The court erred in permitting plaintiff to testify and her evidence was inadmissible because she was one of the original parties to the cause of action and the other party, her husband, is dead. Sec. 4652, R. S. 1899; Angelí v. Heater, 64 Mo. 142; Ring v. Jamison, 66 Mo. 429; Curd v. Brown, 148 Mo. 95; Hach v. Rollins, 158 Mo. 190; Smith v. Turley, 9 S. E. 46. (3) Plaintiff was estopped to claim said land or the money of plaintiffs invested therein after she accepted the deeds for the Maitland property with the agreement and understanding with her husband that such property should be in lieu of, and in full satisfaction for her money used, if any, in buying said farm. Burdett v. May, 100 Mo. 18. (4) Plaintiff was precluded and estopped from claiming the land or the money by reason of her acquiescence and the long lapse of time after the alleged trust was created and her laches in not asserting her claim by instituting and prosecuting her action, upwards of thirty-five years having elapsed. Taylor v. Blair, 14 Mo. 440; Mouman v. Talhott, 55 Mo. 398; Wells v. Perry, 62 Mo. 576; Stevenson v. Saline Co., 65 Mo. 430; Joyce v. Growney, 154 Mo. 262; Smith v. Turley (W. Ya.), 9 S. E. 46; Burdett v. May, 100 Mo. 18; Lenox v. Harrison, 88 Mo. 497. (5) Plaintiff’s action was clearly barred by the Statutes of Limitation, more than ten years having elapsed since her alleged cause of action accrued and more than twenty-four years having elapsed since her said alleged cause of action accrued, and more than three years having elapsed after any disability she may have had, if any, had been removed. Hinkle v. Lovelace, 204 Mo. 227; Burdett v. May, 100 Mo. 18; Landis v. Saxton, 105 Mo. 481; Reed v. Palmer, 145 Mo. 341; Winn v. Riley, 151 Mo. 61.

      B. B. Bridgeman, Charles F. Booher and John Kennish for respondent.
    (1) Appellants complain that the court erred in rendering a decree against all of the defendants, four of whom had not been served with summons, or had other legal notice, and not appearing to the action, (a) Appellants do not challenge the service as to themselves. They appeared and filed an answer and participated in the trial of the cause. The question as to the sufficiency of the service of defendants, other than appellants, is not properly before this court for review, (b) If the non-resident defendants were not properly brought before the court and there was a defect of parties defendant, the defendants who appeared and answered waived such defect by not raising the question by demurrer or answer. R. S. 1899, secs. 598, 602; Horsfckotte v. Menier, 50 Mo. 160. (2) Appellants were duly served, filed answer and contested plaintiff’s suit, and it cannot now reasonably be said that they were prejudiced because another defendant was not properly served with process. In-formalities and irregularities in the summons or process, or return thereof, as complained of in this case, are cured by said Sec. 672, R. S. 1899. Doan v. Boley, 38 Mo. 449; ITensford v. Hensford, 34 Mo. App. 292; Andrews v. Buckbee, 77 Mo. 428. (3) The cases cited by appellants in support of the proposition that a judgment is an entirety, and if void as to one is void as to all, applied to judgments in actions at law in cases of joint liability, and even in such cases the doctrine has been greatly modified since the time of the decisions cited by appellants. Stotler v. Railroad, 200 Mo. 149; Patterson v. Yancey, 97 Mo. App. 681; Christopher and Simpson, etc., Co. v. Kelly, 91 Mo. App. 100; Neenan v. St. Joseph, 126 Mo. 99; Bensieck v. Cook, 110 Mo. 173; State ex rel. v. Tate, 109 Mo. 265; St. Louis v. Lanigan, 97 Mo. 175; Bank v. Umrath, 55 Mo. App. 43; Dickerson v. Chrisman, 28 Mó. 134. (4) The court did not err in permitting plaintiff to testify as a witness in her own behalf. Scrutchfield v. Sauter, 119' Mo. 624. (5) There is no question of estoppel in this case. Scrutchfield v. Sauter, supra. As appellants claim title as heirs of John H. Free-land, deceased, it is apparent that the doctrine of estoppel is not applicable to the facts of this case. (6) The evidence clearly established a resulting trust in favor of plaintiff and against the heirs of John H. Freeland, deceased. Hudson v. Wright, 204 Mo. 412; Owings v. Wiggins, 133 Mo. 633; Scrutchfield v. Sauter, 119 Mo. 625; Seay v. Hesse, 123 Mo. 450; Hdw. Co. v. Horn, 146 Mo. 134; Palmer v. Alexander, 162 Mo. 127; McLeod v. Venable, 163 Mo. 541; Jobnston v. Jobnston, 173 Mo. 115. (7) Defendants failed to establish the defense of the Statute of Limitations. Burén v. Burén, 79 Mo. 542; Gray v. Yates, 67 Mo. 602; Sutton v. Casseleggi, 77 Mo. 397; Lindell Real Estate Co. v. Lindell, 142 Mo. 61; Mann v. Balfour, 187 Mo. 309.
   GANTT, P. J.-

This suit was instituted by the respondent, Joannie Freeland, widow of John H. Free-land, to establish a resulting trust in plaintiff in an eighty-acre tract of land described in the petition. The defendants are the eight children of the plaintiff and her said husband, together with the husbands of the married daughters. Two of the defendants, Aretha Swan and her husband, after the death of John Freeland, and before the institution of this suit, had conveyed the supposed undivided interest of the said Aretha Swan in the land in controversy by trust deed to J. E. Weller, as trustee, to secure a loan made to said Aretha Swan and her husband by Charles Chase, the beneficiary of said trust deed, and Weller and Chase were also joined as defendants.

The suit was brought in the circuit court of Holt county to the August term, 1905, and at the January term, 1906, of said court, the cause was tried and a decree rendered divesting defendants, except as to Weller and Chase, of all right, title and interest in and to said land and investing the same in plaintiff, as prayed in the petition.

Of the eight children and defendants only three daughters and their husbands contested the suit in the trial court, and these also alone appealed from the judgment and decree rendered, to this court.

It is alleged in the petition that the plaintiff and John H. Freeland, deceased, were married in the year 1862, and that eight children were born of the marriage, who, with the husbands of the married daughters, are named as defendants; that in the year 1869 plaintiff’s father, Andrew Miller, for the purpose of providing the plaintiff, his daughter, with a home and means of support, sent the sum of six hundred dollars to one John Spencer with instructions to invest the same in land as a home and for the use and benefit of the plaintiff, his daughter; that pursuant to said instructions, the eighty-acre tract of land in controversy was purchased with five hundred and fifty dollars of said sum, but that by mistake and error, the deed was made conveying title to John H. Freeland, plaintiff’s husband; that the said John H. Freeland paid no part of the purchase price of said land; that the said John H. Freeland with his family continued to occupy, use and enjoy the said land until his death, on the 20th day of January, 1903; that neither plaintiff nor her father, at any time, consented or gave authority that the title to said land should be vested in the said John H. Freeland, and that it was always understood by and between plaintiff and her said husband, during his lifetime, that the said land was the property of plaintiff and of right belonged to her.

It is also alleged that one of the said children, to-wit, Aretha Swan, and her husband, after the death of her father, conveyed her undivided interest to said land to James E. Weller, as trustee for Charles Chase, to secure a loan made by the latter to the said Aretha Swan and her husband. It is also alleged’that the defendant, Grover Freeland, was a minor, and plaintiff prayed the court to appoint a guardian ad litem -to protect and defend the interest of the said Grover Freeland in the suit.

The prayer of the petition was that the defendants be divested of all right, title and interest in the eighty-acre tract of land therein described, and that the same be vested in the plaintiff.

It is further alleged in the petition that three of the heirs, to-wit, Frances Williamson and John Williamson her husband, Laura McMillen and A. Y. Mc-Millén her husband, and Lucy Yan Dyke and William Yan Dyke were non-residents of the State, and prayed that a special summons of process be served on them, as provided by law. Affidavits of non-residence were filed with the petition as to said non-resident defendants.

Frances Williamson, Ella Craytor and Aretha Swan, and their respective husbands, filed separate answer containing several defenses:

1. Denying that plaintiff or her father furnished the money to purchase the land in controversy, or any part thereof, and denying that the deed to said land was by mistake made conveying title thereto to John H. Freeland, and alleging that the money and funds used in the purchase of said land were the property of and furnished by the said John H. Freeland.

2. That defendants, Aretha Swan and her husband, conveyed the undivided interest of the said Aretha Swan to J. E. Weller, as trustee, to secure a loan made by Charles Chase to the said Aretha Swan, and that such conveyance in trust was made in good faith and without knowledge of any claim of title or right by plaintiff.

3. A defense in the nature of an estoppel, on the ground that plaintiff had qualified and acted as administratrix of her husband’s estate, and, as such, inventoried and treated the land in controversy as belonging to the estate of her late husband.

4. That John H. Freeland, deceased, purchased certain town property in the town of Maitland, and that such property Was deeded to plaintiff in satisfaction of all claims of plaintiff against her husband.

5. That by reason of the long lapse of time since the creation and establishment of the alleged trust, plaintiff was precluded from asserting her rights against the defendants therein.

6. A defense of the ten-year Statute of Limitations, the twenty-four year Statute of Limitations, and that more than three years had elapsed after any disability that plaintiff may have had, had been removed.

James E. Weller and Charles Chase filed separate answer, alleging that the loan had been made to the defendants, and secured by trust deed, as heretofore stated.

A guardian ad litem was appointed by the court to represent the minor defendant, Grover Freeland, and it is shown in the record that the said' minor defendant arrived at his majority before the trial, and personally appeared and defended in his own right.

The defendants, Edith Freeland, Rhoda Freeland and Lucy Van Dyke, did not file answer, but were present at the trial and testified as witnesses in behalf of the plaintiff, their mother.

The evidence on the part of the plaintiff tended to prove that her maiden name was Joannie Miller. In 1861, she was married to John Freeland, at Johns-ville, Ohio. John Freeland had a small grocery store at the time. Later on he enlisted in the Federal army, during the war between the States from 1861 to 1865. He was a éorporal. In 1868, John Freeland and John and William Spencer, each of whom had married a daughter of Andrew Miller, in Ohio, removed to Missouri and settled in Nodaway county near Graham. An acquaintance of theirs by the name of Kaufman had preceded them to this State. The two Spencers invested in lands. John Spencer bought some timber land. Freeland seemed to have had very little property of any kind outside of a set of carpenter tools and his gun. About a month after they had located their wives joined them. Mrs. Freeland, the plaintiff, sold her furniture and paid her traveling expenses out of the proceeds. Kaufman had bought the eighty acres in-suit in Holt county and they and John Spencer agreed upon an exchange of some timber owned by John Spencer in Nodaway for this prairie eighty in Holt. Upon this exchange, the plaintiff wrote to her father in Ohio, for assistance in procuring a home, aud finally with a view to obtaining this particular eighty acres of land. John Spencer agreed to take $550 for the eighty, and wrote to Mr. Miller 'to' that effect, and advised him that the land would be worth at least one-half more in another year. Accordingly Mr. Miller, plaintiff’s father, sent $600 to John Spencer to pay for this eighty acres and thereupon Spencer directed the Kaufmans to make the deed directly to the plaintiff. Spencer testified that this was the father’s direction and he, Spencer, thought the deed had been made to plaintiff until just before the beginning of this suit. He testified that he never knew or heard of Mr. Free-land, plaintiff’s husband, claiming to be the owner of this land during his life. He testified that Mr. Free-land had no money with which to acquire the land. The deed was made and acknowledged in 1869'. Mrs. Freeland afterwards received something like $1,000 from her father. Freeland lived with his family on the place and worked and assisted in improving it. Indeed, it is conceded by the defendants who are appellants here, that it was generally reputed in. the family, and Mr. Freeland always admitted, that the $600 sent Spencer by Mr. Miller went into this land. Mrs. Freeland and three or four of her children, who were witnesses, testified that they never heard of the deed having been made to Mr. Freeland instead of to his wife. Whereas the three defendants who are contesting her right, insist that it was known by Mrs. Freeland and the other members of the family that the deed was to Mr. Freeland. There was a hopeless conflict among the members of this family as to who claimed the farm. A number of the children testified that it was always known in the family and recognized by their father as their mother’s farm. Whereas, the three defendants and possibly their husbands, testified that it was recognized as the husband’s farm, at least after the acquisition of the town lots in Maitland. John Freeland died in 1903. Some twelve or fourteen years before he died they purchased a lot in Maitland, and the deed was made to John Freeland, but-after-wards he conveyed the lot to the plaintiff, Mrs. Free-land, as she paid the purchase money therefor. The defendants insist that this conveyance of the Maitland property was made in order to refund to Mrs. Free-land, the plaintiff, the money invested in the farm by her father for her, but this was denied by Mrs. Free-land and her other children, and the weight of the evidence was against any such settlement between the plaintiff and her husband.

On the part of the defendants, it was shown that the plaintiff, as administratrix of her husband, made an inventory, in which the'land in dispute was listed as belonging to her husband’s estate, and in her settlements she was allowed credits for taxes and repairs made on the farm.' On the other hand the evidence tended to show that while she claimed these credits she paid the same out of her rents and products from the farm, and that she signed the papers without understanding the effect of her charges and that at all times she thought the deed to this land was in her name. The circuit court decreed the land to the plaintiff, but rendered a decree in favor of Chase and his trustee as to the deed of trust given by one of the debtors, Mrs. Aretha Swan and her husband, upon her undivided interest in the land, the court holding that Chase was an innocent purchaser for value and without notice.

The errors relied upon for the reversal of the judgment of the circuit court will he considered in the order of the assignments of error.

■I. It is insisted that the court erred in rendering a decree against all of the defendants for the reason that four of the defendants were not lawfully served with process in the case. The three defendants who are appellants in this cause do not challenge the service of process, as to themselves. They appeared and* filed their answers and' contested the case.' The record recites that all the defendants were duly served with notice of summons as required by law. No objection was made to the service or to the return thereof at the trial, nor was the matter called to the attention of the court in the motion for new trial. The sufficiency of the summons as to the nonresident defendants and the return thereof is presented for the first time in this court. The record discloses that Aretha Swan, George Swan, J. E. Waller and Charles Chase, were each duly summoned on original writs of summons to Holt county, and that Ella Cray tor and Joseph Craytor were duly summoned by writs issued to Nodaway county, and Edith Freeland, Rhoda Freeland and Grover Freeland were duly served on summons issued to Buchanan county. Frances Williamson and John Williamson her husband, Laura McMillen and A. Y. McMillen her husband, Lucy Yan Dyke and William Yan Dyke her husband, were alleged to be non-residents of Missouri, and special service against them was prayed as provided by section 582, Revised Statutes 1899. The clerk issued a writ of summons as to these last named defendants, directed to the sheriff of Douglas county, Hlinois, to which was attached a copy of the petition, and the sheriff returned that he served the same by delivering a true copy of said petition and summons to the said Laura McMillen, A. Y. McMillen and Lucy Van Dyke, William Van Dyke not being found in said county. Tbe sheriff made affidavit of tbe said service before tbe clerk of tbe circuit court of Douglas county, Illinois, and tbe clerk affixed bis certificate as to tbe official character of tbe sheriff, and bis authority to serve writs in said county and State. Prances Williamson and her husband entered their personal appearance and filed their answer in tbe cause, and while Lucy Van Dyke did not file an answer in tbe cause, she was present and testified as a witness in behalf of tbe plaintiff, her mother. So that tbe contention on this point is that tbe service upon Mrs. McMillen and her husband and William Van Dyke was void and that tbe judgment is an entirety and therefore being void as to McMillen and wife and' Van Dyke, it is void as to all of tbe defendants. We are of tbe opinion that this objection is not tenable.

In Dickerson v. Chrisman, 28 Mo. l. c. 141, Judge Scott, speaking for this court, said: “Tbe rule that a judgment is an entire thing and if reversed as to one must be reversed as to all, is one only applicable to judgments in courts of common law jurisdiction; or, in other words, to judgments at law. Tbe answer of tbe defendant converted this proceeding, in effect, into a suit in tbe nature of proceedings in equity. Tbe eighth section of tbe thirtieth article of tbe Act of 1849 prescribed tbe mode by which a party against whom a judgment by publication was obtained might be relieved. Dickerson has no right to appear in this court and seek a reversal of a judgment against Browning when be is not affected by it.”

In State ex rel. v. Tate, 109 Mo. l. c. 268, it was said: “Tbe judgment was irregular, to say tbe least, as against J. J. Piland, tbe deceased. He was not served with process, and was reported ‘not living’ by tbe sheriff (though tbe effect of that part of tbe return we do not now discuss). But was tbe "judgment on this account irregular as against tbe other defendants, properly before the court? We think not. . . . The only basis for contending that it did rests on the supposed entirety of every judgment at law. There are numerous remarks scattered through our reported cases to the effect that such a judgment is an entirety and must stand or fall compactly as to all parties defendant to it; and some decisions rest squarely upon that proposition. [Citing cases.] But there are also many final rulings inconsistent with that theory, so broadly stated.”

In Christopher v. Kelly, 91 Mo. App. l. c. 100, the court said: “Neither is the rule founded on the entirety of judgments, whatever that doctrine may be worth; and it is worth much less than it once was. The original effect of it was, that if a judgment was void as to one of the parties thereto, it was void as to all. It was founded on a dictum and has been much discredited and weakened. [1 Freeman on Judgments (4 Ed.), sec. 136.] A study of the later cases of our Supreme Court on the subject will show, in harmony with what has been said above, that it is never applied except under compulsion from the nature of the case. It is common for judgments to be reversed as to one of the parties, or set aside for irregularities or want of jurisdiction, while it is upheld as to others. The rule now established is, that a judgment against several defendants, invalid as to one or more, may be reversed as to them and affirmed as to the others. This rule has been established in deference to the principles of the code, which has adopted the procedure in equity in this respect, and positively forbids the reversal of a judgment unless error was committed against the appellant or plaintiff in error and materially affecting the merits of the action. [Sec. 865, R. S. 1899.] ”

In the very late case of Stotler v. Railroad, 200 Mo. l. c. 149, this court said: “But, waiving the point, we consider it established on reason and authority that we may reverse as to one tortfeasor and affirm the judgment as to others. [R. S. 1899, sec. 866.] The earlier doctrine was to look on a judgment as an entirety and to be reversed as to all, if reversed as to one. But the later and better rule is to go deeper than the mere shell of the judgment and look into the nature of the case itself, and where the interests of parties to an appeal may be rightfully severed, where the errors do not affect the parties jointly and where the rights of one party are not dependent upon those of another, then, it is not necessary to reverse the entire judgment. [Elliott on Appellate Procedure, sections 574, 575.]”

In view- of these well-settled principles, it must be held that, as this is a suit in equity, the doctrine of the entirety of the judgment does not apply. And as was said by Judge Scott in Dickerson v. Chrisman, 28 Mo. l. c. 141, these three defendants have no right to appear in this court and seek a reversal of the judgment against the McMillens and William Van Dyke when they are not affected by it. And as said in State ex rel. v. Tate, supra, the irregularity as to the McMillens and Van Dyke cannot avail these defendants who were personally served and appeared and contested the case. And it is not at all necessary for us on this appeal to determine whether the service and process as to the McMillens and Van Dyke was valid or not.

II. It is insisted that the court erred in permitting the plaintiff, Mrs. Freeland, to testify in the cause, because her husband was dead. In Scrutchfield v. Sauter, 119 Mo. l. c. 624, it was said by this court: “It has long been the settled law in this State that the statute (sec. 89-22) defining the competency of the husband and wife to testify in their own behalf, and for each other, did not intend to exclude the wife from testifying in a ease in which she was a real party in interest. ’ ’

Moreover she did not testify as to any contract with her husband. Her right to the land was not derived through any contract between her and her husband, but depended upon the payment of the money for the land in question by her father for her benefit, under an agreement between her father, Andrew Miller, and John Spencer, to which arrangement her husband was not a party. We think she was clearly a competent witness in her own behalf.

ni. It is also alleged that the court erred in receiving the testimony of John Spencer and the plaintiff as to the contents of letters written by Andrew Miller, plaintiff’s father, to them. An inspection of the record fails to disclose that any objection was made or exceptions saved to such evidence at the trial, and it» is too late to raise it now for the first time in this court.

IV. As to the proposition that plaintiff is es-topped to claim the land in suit by the understanding and agreement at the time of the acquiring of the Maitland property, we think there is no merit in the contention. This is not a question between the creditors of John Freeland and his heirs, but is a claim between Mrs. Freeland and the heirs of John Free-land. In order to constitute an equitable estoppel there must have been, not only a false representation or concealment of the facts, but they must have been made knowingly by the one to be estopped and believed and acted upon by the one claiming ,the estoppel. [Blodgett v. Perry, 97 Mo. l. c. 272; Scrutchfield v. Sauter, 119 Mo. l. c. 623.] We think the court was fully justified in finding that there was no such agreement as asserted by the defendants and that the property in Maitland was conveyed to plaintiff because she furnished the purchase money therefor.

Y. The evidence in this cause fully established a resulting trust in favor of the plaintiff and against the heirs of John Freeland, the defendants.

The evidence not only shows that her father furnished the money to purchase this land for the plaintiff, but it shows that her husband and the children all knew this fact and the evidence shows that the title to the land Was taken in the name of the husband without the knowledge or consent of the plaintiff and that she never discovered the mistake until just prior to the bringing of this suit It is useless to cite authorities on a proposition so well settled as this. [Hudson v. Wright, 204 Mo. 412.]

"VI. As to the defenses of the Statute of Limitations, the facts are that the plaintiff was under the disability of coverture at the time of the conveyance under which a resulting trust arose in her favor. She continued under this disability until the 20th day of January, 1903. This suit was instituted in August, 1905, within three years after the removal of said disability, and the evidence convinced the trial court that plaintiff had no knowledge of the fact that the legal title to the land in controversy was in the name of her husband until after his death. “In implied trusts the Statute of Limitations begins to run as soon as the facts are brought to- the knowledge of the cestui que trust, so that he can take steps to enforce the trust. . . . The defendants relied on the statute, and it was hence their duty to bring the case within it by evidence; and having failed to do so, the presumption must be against them.” [Sutton v. Casseleggi, 77 Mo. 397; Buren v. Buren, 79 Mo. l. c. 542; Mann v. Balfour, 187 Mo. l. c. 309.]

It only remains to say that in our opinion the fact that the plaintiff listed this land in the inventory of her husband’s estate and took the credits for the taxes in view of all the testimony in the case, and of her ignorance of the forms of law, ought not to have much weight against the clear and undisputed evidence showing the existence of a resulting trust in the land in her favor.

In our opinion the decree of the circuit court rests upon a solid foundation and it is therefore affirmed.

Burgess and Fox, JJ., concur.