author: WHITE, C.

text:
    HUGH A. THOMPSON et al. v. TIMOTHY J. LYONS and SAMUEL B. STROTHER, Administrator of Estate of FRED MEYN, Appellants.
    Division Two,
    March 13, 1920.
    • 1. PLEADING-: Cause of Action: Fraud and Deceit. A petition alleging that defendants represented to plaintiffs that a certain tract of 10.4 acres was worth $3000 an acre, that it could be . bought 'for such sum, that relying on said representations plaintiffs put up $16,200 for the purchase of a half interest in the land, that said representations were false and made to deceive and defraud plaintiffs, states a cause of action with sufficient clearness to authorize the introduction of evidence to support it, there being no demurrer filed.
    2. FRAUD AND DECEIT: Verdict of Jury. The verdict of a jury in an action for fraud and deceit concludes the credibility of the witnesses who testified to the substantial facts necessary to support a petition stating a. cause of action.
    3. LIMITATIONS: Purchase of Land Situate in Another State: Applicatory Statute. In an action for fraud and deceit, practiced by defendants upon plaintiffs, - resulting in the purchase of land situate in another state, the question of limitations is governed by the statute of such foreign state, since the transaction occurred in said state, although the shit-is brought in this State.
    4. -: Fraud: Discovery: Diligence. The- statute of the foreign state in which the land transaction occured, providing that “an action for relief on ground of fraud” shall be brought within two years, hut that “the cause of action shall not be deemed to have accrued until the discovery of the fraud,” cannot be held to bar the action on the sole ground that no facts were pleaded or proven to show that reasonable diligence was used to discover the fraud.. The said statute has been construed by the courts of the foreign state to mean that if for any reason no obligation exists to consult the record which the law requires to- be kept as the source of information, or if the defrauded person be circumvented from taking advantage of his opportunity, no duty rests upon- the defrauded person to improve with diligence the opportunity of learning that which the record discloses. No duty rests upon the defrauded person to examine records which do not impart notice, but which are the records of a private realty company, to whose books he has no right of access.
    5.-: -: -: -: Recorded Deed: Consideration of One Dollar. The Supreme Court of Kansas holds that a record imparts notice only of what it contains. The record of a deed reciting a consideration of one dollar is not notice that the purchase price of the land was $14,920, instead of $32,400, which defendants represented to plaintiffs was the purchase price. That record imposed no duty on plaintiffs to use diligence to discover the fraud.
    6. -: -: -: -: Fiduciary Relation: Partners. Where plaintiffs and defendants had entered into partnership for the purchase of the land and defendants represented to plaintiffs that the land was worth $32,400 and induced plaintiffs to put up $16,200 for the purchase of a half interest, and with the money thus placed in their hands defendants bought the entire tract for $14,960, and a deed conveying the tract to one of them expressed a consideration of only one dollar, there existed a fiduciary relation, and the plaintiffs had á. right to rely on defendants' representations and were not required to use diligence to discover that they were false, and the Statute of Limitations did not begin to run until they actually discovered the fraud.
    7. -: -:--: -: Pleading. Where plaintiff merely alleges that he did not discover the fraud until a certain date, and defendant, without questioning the sufficiency of the petition, goes to trial, he cannot complain that the petition did not sufficiently plead reasonable diligence to discover the fraud. Besides, where the bar to the action is first raised by defendant’s plea of the statute of the state where the transaction occured, and in reply to that plea plaintiff • alleges that the facts constituting the fraud were not discovered by him until a certain date, and no objection to the sufficiency of the reply is made, there is no room for a complant that the petition did not allege reasonable diligence to discover the fraud.

      8. -: -: Time Between Death of Defendant and Administration. The time elapsing between the death of a defendant anil the appointment of his administrator is excluded in computing the time the Statute of Limitations has run. So that, in an action for fraud and deceit, if the time between the date when the fraudulent transaction was closed up and the date when defendant’s administrator was brought in has not been five years, excluding the time which elapsed between the death of the defendant and the appointment of his administrator, the action is not barred by the Missouri Statute of. Limitations.
    9. FRAUD AND DECEIT: Immoral or Illegal Contract: Unawful Use, of Official Position: Recovery. Courts refuse to grant relief for gambling and other immoral or unlawful contracts, either by enforcing them, or by awarding damages for the breach of them; but where one of the parties is defrauded by a transaction against public policy, he may recover in an action for fraud and deceit the money fraudulently obtained from him. So that where defendants induced plaintiffs to put up money for a half interest in • land tO' be purchased and falsely represented that the property was worth $32,400 and could not be purchased for less, and further represented that plaintiffs should not be known in the deal for the reason one of defendants was a' county commissioner and the •other a member of the .drainage board and they could get the property cheaper if plaintiffs were not known in the deal, and plaintiffs put up $16,200 and the deed expressed a consideration of only one dollar and named only one of the defendants as grantee, and it afterwards developed that the entire property had been bought for only $14,960, a recovery by plaintiff’s in their action of fraud and deceit, is not precluded on the theory that they and defendants had entered into an illegal contract or scheme, out of which defendants’ liability arose. The rule is that if defendants by misrepresentation of certain facts, or by an illegal use of their official position, induced plaintiffs to enter into an illegal contract and thereby defrauded plaintiffs out of their money, defendants cannot resist recovery by plaintiffs in an action of fraud and deceit on the ground that the scheme was unlawful.
    10. -: Measure of Damages. Where one person makes a purchase for another, or where one of two or more joint purchasers conducts a joint purchase, and falsely represents that the price is actually greater than what is actually paid for the property, the measure of damages is the difference between the amount actually paid by the party defrauded and the true purchase price. So where defendants, in an endeavor to induce plaintiffs to join with tljern to purchase land, represented that the property was worth $3000 per acre, whereas it was actually bought by defendants for less than $1500 per acre, the court properly, refused an instruction directing the jury to return a verdict for defendants if at the time plaintiffs bought a half interest the property was reasonably worth $3000 per acre; but properly instructed the jury to assess plaintiffs’ damages, if they found for plaintiffs, at the difference between what plaintiffs paid defendants for a half interest and one-half the amount defendants actually paid to the grantor for the entire tract.
    Appeal from Jackson Circuit Court. — Hon. Thomas B. Buchner, Judge. ■
    Affirmed.

      John H. Lucas, William G. Holt and G. W. Trichett, for appellants.
    (1) The amended petition does not state facts sufficient to' constitute a cause of action against defendants, because: The gist of the action is alleged fraud inducing the sale and purchase of real estate, (a) The contract is not charged to be in writing*.; therefore, it must be presumed to rest in parol. The Statute of Frauds applies, and no cause of action can be stated. Sec. 278®, R. S. 1909; Knight v. Rawlings, 205 Mo. 412. (b) The amended petition fails to state a single act upon the part of the defendants or either of them which concealed or tended to conceal the alleged fraud. “It must be of an affirmative character and must be alleged and proved.” State ex rel. v. Musick, 145- Mo. App. 33. (e) “General allegations of fraud or other general allegations, no facts being* stated, are but legal conclusions, and for thati reason are insufficient. ’ ’ The amended petition does not chargp that the defendants falsely and fraudulently did any particular thing*. The amended petition merely charges' that the defendants made certain representations which, they allege, turned out to be false, (d) Especially is this true of the separate replies filed by plaintiffs to the separate answers of the defendants. In each separate reply it is alleged generally “that by the acts and conduct of defendants and each of them, . . . secretly and surreptitiously perpetrated said fraud and concealed the facts,” etc. Not a single fact is alleged. Hoester v. Sammelmann, 101 Mo. 624. (e) “A mere charge of fraud, without specification of the act or acts which constitute the alleged fraud, amounts to nothing in pleading.” Newman v. Trust Co., 189 Mo. 444. (f) A party seeking to avoid the bar of the statute of limitations on account of fraud, must aver and show that he used due diligence to detect it. Shelby County v. Bragg, 135' Mo. 300. (g) The petition must charge and the evidence must show, that it was by reason of something defendants did or said that the alleged fraud was not discovered sooner. Callan v. Callan, 175 Mo. 346. (h) In the instant case the alleged fraud was not of a secret nature. It was a matter open to the plaintiffs at all times. “By inquiry of the owner of the land they could have learned that fact, and there is no evidence that defendants did or said anything to prevent a discovery of the alleged fraud.” Scott & Bowker v. Boswell, 136 Mo. App. 606. (i) The question is not whether the plaintiffs were merely ignorant of the facts constituting the cause of action. Such ignorance will not suspend, the operation of the statute unless it can be properly attributed to the fraudulent concealment of the facts'by defendant. Wells v. Halpin, 59 Mo. 97; Johnson v. United Rys., 243 Mo. 298. (j) It is ■essential to state a cause of action based upon fraudulent representations, that it be charged in the petition that plaintiff was deceived thereby,. and relying upon such representations, he was induced to act to his injury. There is neither1 allegation nor proof that the alleged false representations induced plaintiffs to purchase the real estate in question. Remmers v. Remmers, 2.17 Mo. 556; Powell v. Adams, 98 Mo. 604. (k) False representations, to be actionable, must relate to a past or existing fact; and a promise to perform something in the future, standing alone, cannot be made the basis of. an action for fraud. Stockings v. Howard, 73 Mo. 25; Bullock v. Wooldridge, 42’ Mo. App. 356; Davidson v. Hobson, 59 Mo. App. 130; Mathews v. Eby, 149 Mo. App. 157. (1) As a general rule representations made during the negotiation of a contract, which show on their face that they were not intended as a statement of existing facts, hut as a prophecy of things to come, do not constitute actionable representations, however, wide of the event the prediction may turn out to have been. McFarland v. Eailway Co., 125 Mo. 253i; Bretzf elder v. Waddle, 122 Mo. App.' 462. (2) The transaction complained of having occurred in the State of Kansas, the Statute of Limitations of that State applies. The cause of action having accrued more than two years prior to the commencement of the action, the cause was barred. Sec. 6907, G-eneral Statutes of Kansas, 1915, same being Sec. 17, Chap. 182, Session Laws of Kansas 1909. (a) There is neither allegation nor proof that plaintiffs used any diligence to discover the alleged fraud; there is neither allegation nor .proof that the defendants or either of them said or did anything to prevent the discovery of the alleged fraud, and for these reasons the plaintiffs are not entitled to recover. Callan v. Callan, 175 Mo. 346. (b) A party seeking to avoid the bar of the statute on account of fraud, must aver and prove that he used diligence to discover it, and if he had means of discovery in his power, he will be held to have known it, Shelby County v. Bragg, 136 Mo. 300. (c) A party cannot avail himself of the exception to the statute where the means of discovering the truth were in his power and not used. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. Shelby County v. Bragg, 135 Mo. 300; Callan v. Callan, 175 Mo. 361; State ex rel. v. Yates, 231 Mo. 276; Johnson v. Eailways, '2431 Mo. 278; State ex rel. v. Hawkins, 103 Mo. App. 251; Brady v. Insurance Co., 180 Mo. App. 214. (d) Mere silence will not excuse the failure to discover the fraud or concealment. Hoester v. Sammelmann, 101 Mo. 619; Stark v. Zehnder, 204 Mo. 453; Scott v. Boswell, 136 Mo. App, 610; Shelby. County v. Bragg, 135 Mo. 291; Schrock v. Duncan, 189' S. W. 610. • (:3i) The mere fact that plaintiffs looked upon and considered defendant, Lyons, as a personal friend, in no wise created or constituted a confidential relation, and he did not sustain any such relation within the law. “He was at most hut a friend of the family and received no compensation whatever for his acts in assisting- them,” in the purchase of the real estate. Knight v. Rawlings, 205 Mo. 434. (4) The court erred in excluding evidence offered by defendants, showing that the fair market value in 1911 of the real estate in question was four thousand dollars per acre. This evidence was competent for the purpose of showing that plaintiffs suffered no damag-es. (a) The terms of the contract were reduced to writing, and the written contract, which is in no wise challenged, speaks for itself. The measure of damages in action of this character is the difference between the reasonable market value of the thing sold and the contract price thereof. Thompson v. Newell, 118 Mo. App. 405; Pickett v. Wren, 187 Mo. App. 89; Vlates v. Catsignianis, 202' S. W. 441. (b) But in this action it cannot be said that the price paid by defendants indicates the market value any more than the price paid by plaintiffs to defendants. “It is axiomatic that fraud, to be actionable, must result in damages to the parties suing therefor. Stacey v. Robinson, 184 Mo. App. 64. The burden was upon plaintiffs to prove that they suffered damages recoverable under the rule stated above.Vlates v. Catsignianis, 2021 S. W. 441. (5) The court erred in refusing instruction numbered M, tendered by defendants and refused by the court. The substance of this instruction is that if the real estate in question was of the actual value of $3,000 per acre at the time plaintiffs made the purchase then the verdict must be for the defendants. This is the rule of law as announced in: Thompson v. Newell, 118 Mo. App. 405; Vlates v. Catsignianis, 202' S. W. 441. (6) The court erred in refusing to give instruction numbered R, tendered by tile defendants. This instruction stated “that there is no element of partnership in this case.” This instruction ought to have been given. The plaintiffs, throughout their testimony, call the deal one of partnership, which undoubtedly had its effect upon the jury in returning' a verdict for plaintiff. Sec. 2783, E. S. 1909. An essential allegation is that plaintiffs were deceived, hut their petition will he searched in vain for such an allegation.

      Cooper, Neel & Wright for respondents.
    (1) The pleadings in the, case state a complete cause of action against each of the defendants. Eemmer v. Eemmer, 217 M,o. 557; Judd v. Walker, 215 Mo. 335; Monmouth College v. Dockery, 241 Mo. 554; Corder v. O’Neill, 176 Mo. 436; Eutledge v. Tarr, 95 Mo. App1. 268. (2) The Statute of Frauds has no application to the case. Corder v. O’Neill, 176' Mo.. 437. Besides it is an affirmative defense and must be pleaded to be availed of. Morrmeister v. Hannibal, 180 Mo. App. 725; Philllips v. Hardenburg’, 181 Mo. 473'. (3) The pleadings sufficiently stated the facts in reference to concealment. Monmouth College v. Dockery, 241 Mo. 555. (4) The petition was sufficient as to the allegations of diligence. Monmouth College v: Dockery, 241 Mo. 5*52; Cottrell v. Krran, 100 Mo. 403; Bent v. Priest, 86 Mo. 489; Kelly v. Peoples, 182 S. W. 808; Hunter v. Hunter, 50 Mo. 452. (5) The statements made by Lyon and Meyn as to what was being'1 paid for the land in question and as to its value, etc.] are actionable. Johnson v. G-avitt, 86 N. W. 256; Bergeron v. Miles, 60 NI W. 783; Kelly v. Peoples, 182 S'.. W!. 811; Dorr v. Cory, 87 N. W. 684. (6) Plaintiffs were damaged and the correct measure of damage was sued for and recovered in this case. Bergeron v. Miles, 60 N. W. 783; Mayo v. Wahlgren, 50 Pac. 40; Johnson v. Gavitt, 86 N. W. 256. (7) Under the statutes and decisions-of the State of Kansas, as well as of Missouri, the Statute of Limitations does not begin to run until the discovery of the fraud and the Statute of Limitations is no defense under the facts in this case. Statutes of Kansas, 1915, sec. 6907; Klamm v. Claus, 67 Pac. 542; Brown v. Brown, 64 Pac. 601; Marborough v. McCormack, 2131 Kan. 43; Berry v. Ray, 2 Pac. 787; McMillen v. Winfield, 67 Pac. 892; R. S. Mo. 1900, sec. 1889:; Monmouth College v. Dockery, 241 Mo. 551; Hunter v. Hunter, 50' Mo. 452; Cottrell v. Krum, 100 Mo. 402; Judd v. Walker, 215 Mo. 330; State ex rel. v. Hawkins, 103 Mo. App. 254; Bent v. Priest, 86 Mo. 475. (8) The demurrers in the case of both defendants were properly overruled. Judd v. Walker, 215' Mo. 335; Corder v. O’Neill, 176 Mo. 436; Rutledge v. Tarr, 9'5 Mo. App. 268. (9) The testimony as to the market value of the land was immaterial and properly excluded. Johnson v. Uavitt, 86 N. W. 256; Bergeron v. Miles, 60 N. W. 783. (10) The court correctly gave plaintiffs’ instruction numbered 3. Bergeron v. Miles, 6Ó1 N. W. 78Si; Rutledge v. Tarr, 95 Mo. App. .268; Mayo v. Wahlgren, 50 Pac. 44; Jefferson City Savings Assn. v. Morrison, 48 Mo. 274; Caldwell v. Plenry, 76 Mo. 257; McBeth v. Craddock, 28 Mo. App. 398; 'Arthur v. Wheeler and W. M. Co., 12 Mb. App. 341. (11) The verdict and judgment are for the right parties and should be affirmed. Judd v. Walker, 215' Mo. 333; Moninouth College v. Dockery, 241 Mo. 522.
   WHITE, C.

The plaintiffs, in the Circuit Court of Jackson County, June 6,1917, in an action for fraud and deceit, recovered judgment against the defendants in the sum of $11,835.96,. and the defendants appealed. The suit was begun against Lyons and Fred Meyn, and after-wards, on the suggestion of the death of Mieyn, his administrator, Strother, was made party defendant, and an amended petition was filed.

The amended petition on which the trial was had alleged in substance that in June, 1911, and for a long time prior thereto, the plaintiffs were well acquainted with Lyons and Meyn and reposed confidence in them; that in the forepart of June, 1911, Lyons and Meyn represented to plaintiffs that they» had an offer ofi two tracts of land in Kansas City, Kansas, comprising 10',814 acres, for sale at a price of $3',000 per acre; that the land was easily worth the price; that Lyons and Meyn were well acquainted with such values, and the land could not he bought for less money; that they desired the plaintiffs to go in with them' in the purchase of said land at $3,000' an acre,, in which the plaintiffs were to take a half interest and pay one-half the purchase price; that the plaintiffs had no knowledge of the value of such land and relied upon the representations of Lyons and Meyn as to the value of the land and the price to be paid for it; that afterwards Lyons and Meyn represented that they had bought the land at $3,000 per acre, and requested the plaintiffs to pay one-half the purchase price; and the plaintiffs, relying upon the truthfulness of the statements, paid to Lyons and Mleyn one-half of the supposed purchase price- of three thousand dollars per acre, a total sum of $16-,200; that Lyons and Meyn secured title to the property and caused the same to be conveyed to said Meyn; that Meyn thereupon transferred to Frank Thompson, for the benefit of the plaintiffs, an undivided one-half interest in the same; that the land was not worth $3,000‘ per acre; that instead of Lyons and Meyn paying for the land $3,000 an acre, or $32,442, as they fraudulently stated to the plaintiffs, they paid for all of said land only $14,920 or $1,362.2-9 per acre; that Lyons and Meyn paid the entire purchase price out of the money plaintiffs paid, and retained $1,280 themselves; that plaintiffs first learned in Mjay, 1916, that the said representations were false; that by reason of the said fraud the plaintiff's were defrauded out of the sum of $8,740 on the 11th and 19th of July, 1911, and ask judgment for that sum, with interest.

The defendants filed separate answers, each substantially setting up the same defense. After a general .denial if is alleged in defense that the facts stated in the amended petition arose wholly in the State of Kansas and are governed by the laws of Kansas. The answers then set up in bar of the action the Statute of Limitations of Kansas as follows:

“Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued and not after-wards. . . . (3) Within, two years; ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”

The answers further set up in defense the Statute of Limitations of the State of Missouri in that the cause of action accrued more than five years before, and that the plaintiff knew, or by the exercise! of reasonable diligence could have known, all the matters alleged in the petition more than five years prior to- the commencement of the suit, and for that reason the action was barred by both the Statute of Limitations of Kansas and the Statute of Limitations of Missouri. ,

In reply to each separate answer the plaintiffs denied each and every- allegation in the answers contained except that Strother was the administrator of Fred Meyn; denied that the cause of action was barred by the Statute of Limitations, and alleged that “the facts constituting fraud, pleaded in plaintiff’s amended petition, were not discovered by plaintiffs until June, 1916, and a few days prior to the institution of this suit, and that defendants Lyons and Meyn concealed said fraud and the matters, facts and things constituting the same, as well as any means or sources of information, by or through which plaintiffs, by the exercise of ordinary diligence could have discovered same.” The reply further alleged that by reason of the relation that existed between plaintiffs and defendants, and by reason of the confidence plaintiffs reposed in defendants, and by reason of the statements of defendants, and each of them, plaintiffs were induced not to let themselves be known in said transaction and not to make any inquiry concerning the same.

A trial by jury resulted in a verdict and judgment for plaintiff for the amount sued for, with six per cent interest from the date the money was paid.

Hugh Thompson, one of the plaintiffs, testified that he had known defendant Timothy'J. Lyons in the Philippine Islands; had been there in the war and had known him since 1902; that he had known Meyn about the same length of time; that he lived two and a half or three blocks from Lyons and saw him probably every evening prior to June, 1911. He first got acquainted with Lyons when Lyons was running for alderman in the sixth ward in Armonrdale, and he assisted and spent money in helping elect him. "Witness had a nickname of ‘ ‘ Frock ’ ’ by which Lyons called him. ' He related the statements of Ml. Lyons to him, as follows:

“I met Mr. Lyons another evening, and he said, ‘Frock, do yon want to malee some money, yon have always helped me in political matters, and I want to make yon a lot of money, ’ and I said, ‘ How is that, Tim; ’ and I commenced laughing, and he said, ‘ There is a piece of land out here I can buy for $3,000' an acre, and I want you to go in with me, and Frank and Meyn, and buy that. ’ I said, ‘Let’s go out and look at it,’1 and.we jumped in the car and went out and looked at it, and I said, ‘Is it all right, Tim?’ and he said, ‘Yes, it is a good buy,’ and I said, ‘All right, Tim, go ahead and buy it,’ and it was $3,000 an acre. They went ahead and bought the ground. ’ ’

Witness stated that his brother was present and heard the conversation; witness then stated further, when himself, his brother and Lyons were present:

“Q. IG-o ahead and state what occurred at the time the three of you went out there? .A. Tim said, ‘I and Fred Meyn can buy this ground for $3,000 an acre. ’ He said, ‘We have not enough money to buy it, and I want you boys’ — he kept talking to me all the time, he was not very well acquainted with Frank, because Tim and me had been friends and I considered him one of my friends, and up to today I have not had the abstract examined to that property,—

“Q. (Interrupting) When he said, ‘ Lou boys,’ who was it he referred to? A. To Frank and I. He said, ‘I want to make you boys some money,’ and I said, ‘Is this property worth the money? ’ and he said, ‘Yes, it is cheap. ’ He said, ‘Fred Meyn and I will buy this property, and we want you to go in with us, but we don’t want you to be known in the deal until we get the abstract. ’

“Q. Was there any talk as to what interest you would have in the property? A,. One-half interest.

“Q. One-half to whom? A. One-half to the two Thompsons, and one-fourth to Mr. Fred Mleyn, and one-fourth to Mr. Tim Lyons, and I said, ‘Why don’t you want me to he known in the deal?’ and he said, ‘I am County Commissioner, and Fred Meyn is president of the Drainage Board’ — or a member of the Drainage Board— and for the Stock Yards Company we have done a lot of favors, and we can get this cheaper by your not being known in the deal. ’ . . .

“Q. What part of the money were each of you to put up ? A. We were each to put up one-half; the Thompsons were to put up one-half, and Mr. Fred Meyn one-fourth, and Mr. Tim Lyons one-fourth.

“Q. On what basis per acre? A. $3,000 per acre.

“Q. Now, did you have any subsequent meeting at which any of you were present, if so, which ones? A. W.e did meet several times in front of Mr. Lyons’s and talked it over.

1 “Q. Was Mr. Meyn present at any of those meetings? A. Yes sir.”

In relating a conversation when Meyn was present, he continued:

“A. In the evening we met there in front of Mr. Lyons’s house, and Mr. Meyn said,' ‘Now, this is a great buy’—

“Q. (Mr. Neel): Not what Mr. Meyn said. A. Mr. Lyons said, ‘This is a great buy, and I would not let no one else in on this at all, because there is a man by the name of Rieger, of the Rochester Brewing Company, wanted in on this, but he never helped me like you have in politics, and I want you in,’ that is what Mfr. Tim Lyons said. . . .

‘ ‘ Q. Any other conversation in the presence of Mr. Meyn, not what he said. Any conversation when he was present, between you and your brother or Mr. Lyons? A. Mr. Lyons said that they were members of the Drainage Board and members of the County Commissioners, and they didn’t want ns known in the deal until it was closed up.

“Q. At any time when My. Meyn was present was the purchase price referred to? A. At $3,000. -

“Q. And when Mr. Meyn was present, was anything said between yon and Mr. Lyons, or your brother and Mr. Lyons, as to what interest you would have? A. One-half interest. . . .

“Q. Now, how long did these talks and negotiations prolong, Mr. Thompson, before any check was given? Approximately, I mean? A. Three or four days.

“ Q. Now, was there any talk back and forth between yourself and M|r. Lyons going over this matter, between the first two or three conversations that you have spoken about, and the time the check was given, if one was given ? A. Oh, yes; we talked every evening, or practically every evening.

“Q. Was Mr. Meyn present at any of those subsequent times? A. Yes sir.”

Thompson further stated that Lyons told him the trade' was closed and the property had cost $3,000 an acre, and requested a check for plaintiffs’ half of the purchase price.

"Plaintiffs also introduced a check signed, “J- L. Thompson by H. A. Thompson,” dated July 11, 1911, for $15,600 payable to.Fred Meyn and T. J. Lyons, endorsed on the back, “Paid 7-12-11. T. J. Lyons” and “Fred Meyn.” Thompson swore he gave that check to Lyons and Meyn and that they went to the bank and got the cash on it; also a check signed in the same way, dated July 19, 1911, payable to Fred Meyn for $600, and endorsed on the back “Fred Meyn;” also a receipt signed by Lyons and Meyn dated July 11, 1911, for $15,600 for an undivided half interest in a tract of land containing 10.4 acres in Kansas City, Kansas, which Thompson swore was given when the check in the amount named was- delivered.

Thompson further stated that after he had paid $15,600, Lyons came to him and said there was a mistake in the amount of land, and that Thompson owed $600 more. He thereupon gave the second check for $600 to Fred Mleyn. Lyons again told1 him that the ground cost $32,400 ; that they were nil in partnership and that the witness and his brother owned each a fourth; that Lyons owned a -fourth and Fred Mleyn a fourth.

On cross-examination the witness went over the testimony in detail, stating that all four of the parties, the plaintiffs and Lyons and Meyn, had talked over the land trade, and that in one of these, conversations plaintiff told Lyons that he would trust him and they would go in together as partners; that Lyons said the land could not be bought for less than $3,000 per acre. O. F. Thompson swore the plaintiffs relied upon Lyon’s honesty and ability and made no investigation.

On July 11, 1911, the Commercial Bank of Kansas City showed a credit to T. J. Lyons of $15',600'.

Plaintiff offered a deed dated July 20', 1911, from the Kaw Valley Town Site & Bridge Company to Fred Meyn, conveying'the land in question for a recited consideration of one dollar.

Also a deed dated July 20, 1911, by Meyn and wife, conveying to Thompson a half interest in the land; also a deed dated the same day and recorded on that date, from Meyn and wife to Lyons, for an undivided one-fourth interest reciting a consideration of one dollar.

John W. Merchant, sworn on behalf of plaintiff, testified that the two tracts of land covered by the deed comprised ten acres and a fraction; that he represented the Kaw Valley Town Site & Bridge Company; the amount paid for the land conveyed by the deed was $14,920, and he delivered the deed to Fred Meyn; that at the time he made the deed Meyn asked him to make two extra deeds, one conveying a half interest and one conveying a quarter interest, leaving the names blank; he made these deeds and Mleyn took them away with him.

C. F. Thompson was sworn and his evidence supported the testimony of his brother in the essential facts of the transaction. Other witnesses were produced to corroborate the same details of' the transaction. Thompson swore also that plaintiffs did not learn the real consideration paid to the Kaw Valley Town Site & Bridge Company until a -short time before the suit was filed.

Fred Meyn was dead at the time of the trial. Defendant Lyons was sworn as a witness and contradicted in detail the testimony of both plaintiffs as to the main issues in the case. He testified in substance that he had contracted to buy two acres of the land in controversy at the rate of $3-,000- per acre, and that to accommodate plaintiffs he agreed to take in lieu of same .one-fourth of the entire tract; that he received a deed for his one-fourth and paid Meyn therefor at the rate of $3,000 per acre; that he never received any profit over and above that which he paid for his one-fourth interest.

On cross-examination Lyons admitted that he never paid Meyn anything for his one-fourth interest at the time he got the deed, but claimed that Meyn owed him and the matter was settled between them later.

Defendants also offered, testimony to show that the value of the land in July, 1911, was $3,000' per acre. Part of this evidence was excluded by the court.

The county record and assessment list for 1910-11 was offered in evidence by defendants, and excluded by the court at the instance of plaintiffs. The record and assessment list disclosed that the 10.81 acres in controversy was assessed for 1910 and 1911 at $30,000.

I. Appellant complains that the petition uoes not state a cause of action for fraud and deceit and that the evidence for plaintiffs does not make out a case.

There was no demurrer to the petition, whicn is set out in substance above, and no objection to its sufficiency taken by motion or otherwise until evidence was offered in its support; then defendants objected to the introduction of any evidence on the ground that it didn’t state facts sufficient to constitute a cause of action; it was good against an objection taken in that manner. It stated definite facts constituting the false representations, to-wit, the purchase price of the land to be bought, and that such representations were false. It stated with sufficient clearness that plaintiffs relied upon those statements and thereby were induced to make the purchase and pay for their half interest more than the total price for the whole.

The evidence as briefly stated above shows that the allegations of the petition were .supported. There was substantial evidence to show that the false representations alleged actually were made, that the money actually was paid by plaintiffs and received by the defendants; that the plaintiffs were deceived by the representations and thereby induced to part with the money. The defendants denied the allegations of the petition and introduced testimony tending -to- controvert the truthfulness of the statements made by the plaintiffs and their witnesses. Whether in fact the evidence offered by plaintiff was true was a question for the jury to determine, and by their verdict the jury found it to be true. That finding is conclusive upon this court.

II. Appellant correctly says the Kansas Statute of Limitations applies to the cause of action stated, because the transaction occurred in Kansas. [Sec. 1895, R. S. Mo. 1909.] The Kansas Statute of T , ,, , , Limitations provides that a suit can only be brought within two years “in an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” It is claimed that the statute bars the action in this case because there was no pleading, nor facts proven, to show there was reasonable diligence used to discover the fraud.

Kansas cases are cited construing the statute. Those cases hold in effect that where the means' of knowledge is within reach of the party defrauded he is presumed to have knowledge of the fraud. In each one of them, however, there íucis constructive notice; that is, there was an administrator’s settlement, or the record of a deed, showing the facts which were concealed from the party defrauded. The rule obtaining in Kansas is laid down in the case of Hutto v. Knowlton, 82 Kan. 445, l. c. 448, as follows:

"Where a public record is required by law to be kept as a source of information respecting property-rights and interests, a duty rests upon anyone to whom the information is material to improve with diligence the opportunity of learning that which the record discloses. .. . . But the rule :is no broader than its basis, and if for any reason no obligation exists! to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain.

"There is no obligation resting upon a landlord to watch the records for tax deeds fraudulently taken out by his tenant [citing cases]. Where fiduciary relations exist requiring the disclosure of the true state of facts there is no reason to anticipate unfaithfulness, and the obligations to search the records is relaxed [citing’ cases]. Likewise, if a party be prevented by fraud from availing himself of the benefit of the record, or be led by such means to forego an investigation of the record, no one participating in the fraud can insist upon the enforcement of the duty to do so. We have here just such a case. The records were not accessible to the appellant, who lived in a distant state. Ellis understood to impart the very information, which if his statements were true, the records would have furnished. The appellant had no reason to question his veracity, and the law did not oblige- her to do so. She had the right to accept his representations as true, and to relv upon them as faithful disclosures of what she would 'discover from the records if she consulted them. ’ ’,

It is claimed here that the records of the Kaw Yalley Town Site & Bridge Company showed the actual consideration which Eked Meyn paid for the property was $14,920, instead of more than $32,000 as represented by him. But the plaintiffs had no access to the books of that corporation, no right to examine them and in fact no right to ask anyone in custody of them what they showed. It wasn’t a record which imparted notice to them.

It is true the deed of the company to Meyn recited a consideration of one dollar and that appears of record and imparts notice, but it did not impart notice of any fraud. It is held by the Kansas Supreme Court in the case of Kline v. Cowan, 84 Kan. 776, that a record imparts only notice of what it contains. The court says:

“But where the recorded instrument, as in this case,, furnishes no evidence of the fraud, constructive knowledge thereof cannot be imputed.”

And in the case of Underwood v. Fosha, 96 Kan. l. c. page 551, the Supreme Court of Kansas said: “The record of the deed imparts notice of everything contained therein. It does not impart notice of matters wholly outside the deed.”

Doubtless the plaintiffs knew from the start that the deed executed by the corporation recited a consideration of one dollar and it was at that very time they were told by defendants that the consideration was in excess of thirtyrtwo thousand dollars. The deed did not disclose the real consideration, and it would not suggest any reason for failure to state the true consideration other than that which often prevails in real estate deals — that it mig'ht facilitate a further negotiation of the land. The fact that the true consideration was not stated would not necessarily require the plaintiffs to make any further inquiry than to ash their friends, with whom they were in partnership and whom they trusted, what the real consideration-was. So there was no showing which would set the Kansas Statute of Limitations in operation.

Applying the Missouri doctrine to the facts, the case most favorable to appellants is Hays v. Smith, 213 S. W. 455. In that case it was represented to the plaintiff that a certain tract of land could not be bought for less than seventy-five dollars an acre and he was induced to pay that for it, when in fact the agent who made the representations paid only fifty dollars an acre for it. It was held that the statute began to run from the time the trade was made, because the plaintiff should have discovered the fraud that had been practiced upon him. In that case the party who made the representations was not the agent of the purchaser, but the agent of the seller. Plaintiff himself testified that inside of a year he learned that the land would sell for fifty to sixty dollars an acre. He learned all about the land and knew that it was not worth what he paid for ■it. The opinion in that case also emphasizes the fact that the purchaser was dealing with the agent of the other parties at arm’s length; his suspicions were aroused at the start, and he says he was “juberous” about the land being worth what he paid for it when he made the trade, and that he didn’t care about asking the price of the land because he didn’t want to make the agent out a liar in the presence of the owner. A number of circumstances in that case suggested to the purchaser that he should make inquiry.

That ease differs from the present case in all these particulars. Here the parties making the representations were partners of the plaintiffs. Plaintiffs had a right to rely upon their representations. Not a single fact was brought to their knowledge which would tend to arouse suspicion that their partners were not dealing-in good faith with them. It is even pointed out by appellants that the land was actually worth $3,000 an acre, so that any inquiry regarding values would not have revealed the fraud.

This court has announced the same doctrine as the Kansas courts of constructive notice being equal to actual notice of the fraud so as to put the Statutes of Limitations in operation. [Hudson v. Gaboon, 193 Mo. 547.] But has also laid down certain principles which govern the application of the statute. In the case of Monmouth College v. Dockery, 241 Mo. 522, l. c. 552, the court said:

“If there was nothing in the transaction at the time, or nothing occurring later, to cause a reasonably prudent man to suspect fraud, he is not guilty of negligence in failing to ferret it out.” ♦

On page 559 the same opinion, quoting from an Illinois case, says:

“The failure to use ordinary diligence to discover the fraud may be excused where there exists some relation of trust and confidence, as principal and agent, client and attorney, cestui que tru-st and trustee between the party committing the fraud and the party who is affected by it, rendering it the duty of the former to-disclose to the latter the true state of the transaction, and when it appears that it was through confidence in the party who committed the fraud that the other was prevented from discovering it.”

On the same page the court approved of another case where the relation of confidence was that of a partner, and the court says in the case of the partner, 1. e. 559:

“But here there”was a positive representation made by a party whose position required of him the utmost good faith, and that representation was a concealment of the cause of action. Whatever may be the rule where no relation of trust and confidence exists, we are clear that where the relation does exist, as in this case, the bar of the statute cannot avail the party who misleads his partner.”

•A still later case, Laird v. Keithley, 201 S. W. 1138, l. c. 1142, in the opinion of Judge Woodson, this court held:

“It is next insisted that, even though the respondent did not know of the fraud at the time of the completion of the trade, yet by the exercise of ordinary and reasonable care and prudence he could have ascertained the fraud, before the five years expired, and for that reason the demurrer should have been sustained. This insistence is equally untenable. The respondent testified that he relied .entirely upon the representations made to him by appellant and his agents regarding the character of the soil and the productions of the Ralls County land, and that he did not rely upon his own observations, which, the evidence tended to show, were hurried, •casual and limited, a mere bird’s-eye view, and in no sense an inspection of the land within the meaning of that term; also that certain material facts were concealed from respondent, which, coupled with the misrepresenta Tons mentioned, threw him off his guard and lulled him into- the belief .that the Missouri farm was as representí d to him. Under those conditions the law is well settlf d that the defrauded party is under no legal obligation to investigate the honesty of the transaction, but may rely upon the representations of the vendor to be true.”

The weight of authority is against the position taken by appellant in regard to plaintiff.’s duty in discovering the fraud.

III. It is claimed by appellants that the pleading of plaintiffs in avoidance of the Kansas Statute of Limitations was insufficient to show reasonable diligence in discovering the" fraud. The petition stated the fra;U(3- was not discovered until June, 1916.

This court in the case of College v. Dockery, 241 Mo. l. c. 554, said, in a case of this character:

“If the plaintiff merely states that he did not discover the fraud until a certain date, and the defendant, without questioning the sufficiency of the pleading, goes to trial on that issue, ... he cannot, on appeal, complain of the defect in the pleading. ’ ’

The court then further said : “There was no demurrer filed in this case, and no objection to the evidence on the specific ground of this alleged defect,” and held the pleading sufficient.

In this case the petition was sufficient, and besides the replies averred that the facts “constituting the fraud pleaded in the plaintiff’s amended petition were not discovered by plaintiffs until June, 1916.” The replies further alleged that plaintiffs were misled and prevented from discovering the fraud, and that the defendants concealed the fact from which it might have been discovered.

Before any testimony was introduced the defend-’ ants’ counsel objected to the introduction of any evidence on the ground that the petition did not state facts sufficient to constitute a cause of action and mentioned several specific objections to the petition, but did not state any objection on the ground that it contained no allegation of facts 'which would remove the bar of the Statute of Limitations. The replications of the plaintiffs were not mentioned in any objection as being insufficient in any particular. It will be noted the plaintiff did not need to plead such facts in. the petition because the Statute of' Limitations of Kansas was not in issue until pleaded in the answer; then such facts were properly pleaded in reply, and no objection to the sufficiency ot the reply was made.

IV. The appellants claim that the Missouri Statute of Limitations would bar the action. In addition to what is said above it may be noteff that this action was begun June 27, 1916. The trade was actually closed up and the fruits of. the fraudulent transaction received by the defend- , , T , OA ,, £UltS UDOUt July 20’? 19'11? SO t-JlG suit was actually begun within five years from the time the trade was closed.

But the appellant claims, inasmuch as the petition was amended, malring Strother, administrator of Meyn, defendant, at the September term, 1916, and since the trade was consummated in July, 1911, that more than five years had elapsed before Strother was sued, and therefore the suit as against" him is barred.

The amended petition alleges that Fred Meyn died the twenty-second day of April, 1916'. There is nothing to show when his administrator was appointed. It appears to have been after the suit was begun and immediately before the amended petition was filed. The time elapsing between the death of the decedent and the appointment of his administrator is excluded from the computation of time the Statute of Limitations runs. [Nelson v. Haeberle, 26 Mo. App. 4; McKinzie v. Hill, 51 Mo. 303; Little v. Reid, 75 Mo. App. 266, l. c. 269; Hinshaw v. Warren, 167 Mo. App. 365, l. c. 368.] There seems to be an interval of three or four months between the death of Meyn and the appointment of his administrator during which the statute did not run.

V. Another reason urged why plaintiffs should not recover is that they,, with the defendants, had entered into an illegal contract or scheme, out of the operation of which scheme the liability arose.

An instruction was asked by defendants directing the jury to find for defendants “if the plaintiffs and defendants purchased the land in controversy with the understanding that the defendants were to use their official positions for the sale thereof.” The court gave the instruction after adding: “unless the defendants acted, fraudulently as set out in other instruction.” That action of the court, appellant claims, was error.

Mr. Lyons represented, so the evidence goes, that on account of his office he knew the inside of all the work of the railroad and the Terminals, and this was a piece of ground they expected daily the Terminal would buy. He also stated that they were members of the Drainage Board and for that reason did not want the plaintiffs known in the deal.

The appellants cite a number of oases where the courts have refused to enforce contracts based on lottery schemes, gambling arrangements, and immoral or unlawful undertakings. None of these cases are in point because this is not an action to enforce a contract, nor for the breach of a contract. It is an action for fraud and deceit. While the courts refuse to grant relief to either party in a suit on a contract which is against public policy, yet where one of the parties is defrauded by reason of the transaction he may recover for fraud and deceit. [McNamara v. Gargett, 68 Mich. 454, l. c. 462; Hess v. Culver, 6 L. R. A. 498; 12 R. C. L. top page 399.] The difference between enforcing illegal contracts, and asserting title to money which has arisen from them, or alleging fraud in being induced to enter them, is pointed out in numbers of cases. [McBlair v. Gibbes, 58 U. S. 231, l. c. 235-7; Smith v. Blachley, 68 Am. St. 887, l. c. 891.] The Supreme Court of Kansas has passed upon this proposition in the case of Jones v. Inness, 32 Kan. 177, l. c. 181. In that case on© person made another drunk and while the latter was under the influence of liquor, induced him to bet on a game of cards and obtained his money in the gamble. Gamjbling was contrary to law and the whole proceeding was illegal, yet plaintiff could recover on account of the fraud. So, also, Hall v. Corcoran, 107 Mass. 251, l. c. 256; Loomis v. People, 67 N. Y. 322.

This court had occasion to pass upon this very question in case of Hobbs v. Boatwright, 195 Mo. 693. That was a suit to recover six thousand dollars on the ground that it was obtained by a fraudulent scheme of the defendants. It was shown that the plaintiff was induced to bet on a foot race to be “framed” so that he would win. The race wras “framed” but so that he lost the six thousand dollars. The court explains the principle, pp. 727-728:

“The petition states in substance that the defendants Boatright and others had, prior to the grievance complained of, conspired to have what it calls fake foot races run at Webb City on which strangers were enticed to bet and that the races were so fixed in advance that whichever one of the racers a stranger should bet on was sure to lose, that schemes to entice strangers were devised, and that plaintiff was caught in one of these schemes and inveigled into putting $6',000 into the hands of Boatwright as stakeholder on what plaintiff supposed was a race, with the result that the man he bet on, who was one of the conspirators, was beaten in the race, as it was previously agreed between him and his co-conspirators he would be, and so plaintiff lost his money, and that the defendants, the Exchange Bank and J. P. Stewart, aided and abetted Boatright and his gang in perpetrating the fraud.

“If the petition was intended to state a cause of action under Section 3424 as for money lost at gambling, there is a gpod deal more of it than necessary. Fraud or unfairness in the game is not essential to the right of action given by that statute; and on the other hand, if there was no such statute the petition states a right oh action at common la,w, that is, that defendants Boatright and others obtained the plaintiff’s money by a fraudulent scheme in which they were assisted by the bank and its cashier Stewart. That is that the petition means.”

In this case, if, by some stretch of construction, it may he said that plaintiffs were led to enter the deal because defendants represented that they would unlawfully procure a sale of the land on account, of their official positions, the plaintiffs probably, could not have enforced the contract in any land of an action; but, if the defendants by misrepresentations of certain facts induced the plaintiffs to enter the illegal contract and defrauded them of their money, they can’t resist recovery on the ground that the scheme was unlawful.

VI. The defendants asked an instruction directing the jury that if at the time the plaintiffs bought, the land was reasonably worth three thousand dollars an acre they should render a verdict for the defendants. The court refused the instruction, and it is J claimed the ruling was error. On the measure of damages the jury were instructed, if they found for plaintiffs, to assess their damages at the difference between what the plaintiffs paid Lyons and Meym for the half interest which they got and one-half of the amount which Lyons and Meyn actually paid the Kaw Valley Town Site & Bridge Company for the entire tract. Appellants claim this was error, and assert that the true measure of damages is the difference between actual value of the land and the price which the plaintiffs paid for it^on the theory that if the land was worth as much as the plaintiffs paid for it plaintiffs were not damaged.

The measure of damages for misrepresentations inducing the purchase of land, or other roperty, depends upon the nature of the misrepresentations. If the false statements which induced the trade were as to quality, condition or any fact which would enter into the value of the land, the measure would be .the difference between the actual value and the value as it would have been if the property had been as represented. [Sigafus v. Porter, 179 U. S. 116; Stoke v. Converse, 38 L. R. A. (N. S.) 465, note.] But where one person makes a purchase for another; or where one of tw'o or more joint purchasers conducts a joint purchase, and falsely represents to the others that the price is greater than is actually paid for the property, the measure of damages is always the difference between the amount actually paid by the party defrauded and the true purchase price of the interest which he acquired. [Pickett v. Wren, 187 Mo. App. 83; 20 Cyc. 141; Johnson v. Gavitt, 114 Iowa, 183; Bergeron v. Miles, 88 Wis. 397; Rutledge v. Tarr, 95 Mo. App. 265, 268; McLain v. Parker, 229 Mo. 68. See also case of Pendergast v. Reed, 96 Am. Dec. 541.]

Appellants cite the case of Thompson v. Newell, 118 Mo. App. 405, l. c. 415-16, in support of their position that the measure of damages was the difference between the actual value and the amount paid. That case, as some other cases, bolds that where a seller induces a purchaser by misrepresenting the price which the article sold • cost him, that ’is the measure of damages unless the original cost enters as a term in the contract. It will be seen from the discussion of the principle on page 415 of that case that the correct rule as stated above is approved. This wlas not a case where the defendants sold the land to pláintiffs by simply stating what it had cost them at- some previous time. The plaintiffs and defendants went in together as joint purchasers; the defendants acted for the plaintiffs in the matter; and in every case where the facts are of that nature the measure of damages is as stated above. The plaintiffs in fact were damaged in exactly the amount they paid defendants for the land in excess of what it actually cost. Whether or not they made, or might have made, money on the deal, makes no difference whatever in their right to recover or in the measure of their damages. [Pickett v. Wren, 187 Mo. App. l. c. 90, 91.]

The record before us and the .briefs filed show the case was fought through on both sides with great vigor and pertinacity. Some points are made by appellants in regard to matters collateral to the main issues. These are answered by what has been said above.

The judgment is affirmed.

Railey G., dissents; ' Mordey,, G., concurs,.

PER CURIAM: — The foregoing opinion by Whit®, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: BAILEY, C.

license: Public Domain

text:
    JOHN H. WITLER et al. v. CITY OF ST. LOUIS, TERMINAL RAILROAD ASSOCIATION and FRUIN-COLNON CONTRACTING COMPANY, Appellants.
    Division Two,
    March 13, 1920.
    1. MEASURE OF DAMAGES: Viaduct: Obstruction of Access. Where a part of the street, two feet wide, between the seven-foot viaduct and plaintiff’s property, had not been elevated but remained as it was before the viaduct was constructed in the street, there is no room in the case for an instruction telling th'e jury that one measure of plaintiff’s damage is the amount of money it would cost to raise the surface of plaintiff’s property to a level with the present surface of the viaduct.
    2. -: -: -: Special Benefits. Where access to plaintiff’s property has been completely prevented on the east by the erection of a seven-foot viaduct in the north-and-south adjoining street, and has otherwise been shut off by a ninety-nino- ' year lease of the property on the south, north and west to a railroad company and the inclosure thereof by* a fence, there can be no special benefits to their property by the construction of the viaduct, and the court is not authorized to instruct the jury to take special benefits into consideration as a set off to the damages sustained by them.
    3. -. Interest: Torts; Instruction: Mutual Error. Where the instructions asked and given for both plaintiff and defendant told the jury to assess the damages, together “with interest on such sum at the ra.te of six per cent per annum from such date as from the evidence the jury find said obstruction of access” to plaintiffs’ property by the construction of a seven-foot viaduct in the adjoining street “was complete,” defendant cannot complain that the court instructed the jury to allow interest, even though it be admitted that interest is not allowed in actions ex delicto.

    4. -: Excessive: Contradictory- Testimony: Question for Jury. Where the testimony in regard to the value of plaintiffs’ property, and the damages thereto caused by the construction of a seven-foot viaduct in the adjoining public street and the complete obstruction of their access thereto, is exceedingly contradictory, but sufficiently substantial, if believed, to support the verdict, and there is nothing in the record to indicate passion or prejudice on the part of the jury, it is the peculiar province of the jury to ascertain and determine the amount of damage, and the court will not interfere with their finding.
    Appeal from St. Louis City Circuit Court. — lion. William T. Jones, Judge.
    Affirmed.

      Charles II. Domes and II. A. Hamilton for appellants.
    (1) Any damage that respondents may have suffered by reason of destroying their access to Adams Street east of Compton Avenue is not an element which the jury might consider in arriving at their verdict because the property in question did not abut on Adams Street east of Compton Avenue. Dillon on Mun. Corps. (3' Ed.), sec. 730; Rude v. St. Louis, 93 Mo. 408; Gardner v. St. Joseph, 96 Mo. App1. 667. (2) Special benefits accruing to property from a change of grade of the str’eet upon which it ahuts should be deducted from the damages occasioned by such change of grade, and a refusal to so instruct the jury is error. Kent v. St. Joseph, 72 Mo. App. 42. (3) An action for damages resulting from a change of grade is an action in trespass, and the rule is well settled in this State that in actions ex delicto interest should not be added to the actual damage suffered by plaintiff. G-erst v. St. Louis, 185 Mo. 191; Simmons Hardware Co. v. St. Louis, 192 S. W. 39'4; Reading v. Railroad, 188 Mo. App. 41. (4) The verdict of the jury is so clearly excessive that the judgment thereon should be reversed.

      George W. Lubhe, George W. Lubhe, dr., and Ferris é Rosshopf for respondents.
    (1) The trial court did not err “in instructing the jury to allow as an element of damage to the property in dispute the destruction of access to Adams Street,” because: (a) the court did not so instrfuct the jury; (b) the evidence shows that the viaduct cut off all egress from and ingress to plaintiff’s property, except a narrow alley on the north side, thereby practically bottling up the property, and leaving it in a condition wholly unlike that in the cases cited by appellants; (o) thad the viaduct not obstructed Adams Street, respondents’ property would not have been bottled up, and in that respect, the obstruction on Adams Street caused peculiar and special injury to plaintiffs’ property; (d) 'in this case “circumstances exist in which the right of access is broader than the boundary lines upon the street of the private owner,” and the rule in Rude v. St. Louis does not apply. ' Gorman v. Railrload, 255 Mo. 492; Rude v. St. Louis, 93 Mo. 415:; Gibbons v. Railroad, 284 111. 559; Rigney v. Chicago', 108 111. 64; ' Chicago v. Taylor, 125 U. S. 161; Kansas City v. Cruther, 214 S. W. 109. (2) Isolation of respondents’ property from Adams Street by the viaduct was complained of in their petition, and evidence as to access to Adams Street was freely admitted without objection. Instruction 4 requested by appellants and given by the trial court, told the jury, in arriving at their verdict, to “take into consideration all the facts and circumstances in the whole case.” Appellants are bound-by the position they assumed upon the trial. Mirrielees v. Wabash, 169 Mo. 486; Harper v. Moose, 114 Mo. '922.; Tomlinson v. Ellison, 104 Mo. 112; Menefee v. Diggs, 186 M'o. App-. 662. (3) The trial court properly might have instructed the jury to allow as an element of damage the destruction of actress to Adams Street, because, in the light of the facts and authorities referred to in the paragraph next above, appellants had waived the right to object to such instruction. (4) On the measure of damages, the court gave respondents’ instruction number 2, and appellants’ instruction number 5; neither of which refers to Adams Street, and both of which confine the consideration to the damage caused by the viaduct adjoining or adjacent to respondents’ property. Whether respondents’ said instruction number 2 is correct- or incorrect, appellants are in no position to complain, as it is in harmony with one given at their owii request. Rourke v. Railway Co., 221 Mo. 62:; Kame v. Railroad, 254 Mo. 197; Lange v. Railway Co., 208 Mo. 47'5 ; Williams v. Gas and Electric Co., 274 Mo. 14. (5) Appellant’s point that special benefits accruing to respondents"’ property from the change of grade should be deducted from the damages occasioned by such change, is not well taken, because: (a) the court sufficiently and properly instructed the jury as to the measure of damages in appellants’ given instruction 5 and respondents-’ given instruction 2; (b) the appellants’ said refused instruction was pr'operly refused because there was no evidence to support it in respect to the amount of money it would cost to raise' the surface of respondents’ property, etc. Home Bank v. Towson, 64 Mo. App. 100'. (6) Appellants’ refused instruction was erroneous-, and was properly refused'. Its effect, if given, would have been to require the jury to twice deduct the special benefits from the damages. Hickman v. Kansas City, 12-0 Mo. 122. (7) The trial court did not err in instructing jury to allow interest on the damages found, because the appellants’ given instruction on the measure of damages told the jury to award interest, and appellants cannot complain of respondents’ given instruction in that respect. Lange v. Bailway Co., 208 Mo. 475 ; Hazell v. Bank, 95 Mo. 66; Williams v. Gras and Electric C'o., 274 Mo. 14. In passing, it is interesting to note that it is the tendency of courts in modem times to award interest in such cases. Hampton v. Kansas City, 74 Mo. App. 129; Cooley on Torts (Students’• Ed."), p. 128; 28i L. E. A. (N. S.) 66, note; 17 C. J. 825-826; Webster v. Eailway Co., 116 Mo. 116; 2 Lewis on Eminent Domain (3 Ed.), sec. 742, p. 1323.
   BAILEY, C.

This action was commenced by plaintiffs, in the Circuit Court of the City of St. Louis, on October 27,1915. It was tried before a jury upon an amended petition, to which defendants had pleaded by way of general denials. Eespondents, in their petition, allege that they are the owners of Lots 26, 27, 28 and 29, in City Block No. 2277, of said city, having a front of 110 feet on the west line of Compton Avenue, .and a-front of 130' feet on the north line of Adams Street; that said property was bounded on the west by an alley, and on the north by an alley, on which there are now situated, and for many years have been situated, the dwelling buildings, with appurtenances, known and numbered as 319 South Compton Avenue and 3203 Adams Street. It is further alleged in said petition that said land is improved, and that there are erected thereon two substantial brick houses and various sheds, with other appurtenances used in connection therewith; that the City of St. Louis, by Ordinance No. 25,367, approved July 20', 1910, changed the grade uf Compton Avenue adjacent to respondents’ property and provided for the construction of a viaduct over the railroad tracks, several blocks south of respondents’ property; that said viaduct reached the old grade of Compton Avenue at a point ten feet south of the north line of respondents’ property; that the viaduct practically occupied the entire width of Compton Avenue, and by reason.of the construction thereof respondents’ access to Compton Avenue was destroyed. The petition also alleges that respondents ’ access to Adams Street, east of Compton Avenue, but upon which street plaintiffs’ property did abut, was also destroyed. It is further alleged that before the building of said viaduct, respondents’ property was reasonably worth $40,000', and that by reason of the construction of said viaduct it has been damaged in the sum of $25,1500, etc.

There was substantial evidence offered upon the part of plaintiffs tending to show that the property in controversy consists of a tract of. land lying at the northwest corner of the intersection of Compton Avenue and Adams Street, in said City of St. Louis, having a frontage of 110 feet on Compton Avenue, extending back westward in uniform width 130 feet to an alley, and bounded on the south by Adams Street, and on the north by an alley 15 feet wide. On this land is a two-story brick house facing Adams Street, the south line of which house is twenty- ' four feet and four inches north of the north line of Adams Street, and the east side of said house is about eight feet from the west line of Compton Avenue. Near the northeast comer of said land is a brick dwelling house, two and one-half stories high, extending to an alley on the north, and extending to within about seven feet of the west line of Compton Avenue. These two dwelling houses stood upon the same ground at the time of the building of said viaduct, for many years before, and were there at the time of trial. Prior to the erection of the viaduct, there were also upon said ground several 'outbuildings used in connection therewith. At the time of trial, and long prior thereto, the two-story building’, facing on Adams Street, was occupied by a tenant, and another tenant occupied the house facing on Compton Avenue.

To the south, west and north of respondents’ said tract of land, is a large tract of land, known as the Rankin tract, which had never been improved by the erection of buildings tbereon. Said Rankin tract had been duly platted into lots, streets and alleys, but the streets and alleys had never been used or improved, and existed only on paper.

Adams Street, east of Compton Avenue, was a street duly made, paved with macadam and curbed, and was much used by the public; but west of Compton Avenue it had never been made or paved, and was used as a part of respondents’ premises, as far west as said premises extended, 130 feet, and served as an outlet for respondents’ premises to.Compton Avenue. Adams Street has never been used as a street west of a point 130' feet west of Compton Avenue.

At the time of the building of the viaduct, Compton Avenue was, and for many years prior thereto had been, a well improved thoroughfare, and in the neighborhood of respondents’ property, it was paved with granite blocks, having curbingi and sidewalk, and was much used for hauling.

At the time of the building of said viaduct, the property on the south side of Adams Street, and east of Compton Avenue, and for a considerable distance south, was used for the purpose of terminal railroad yards. It was filled with railroad tracks, and the latter came up to Adams Street and Compton Avenue, leaving only a space for loading, wagons. West of Compton Avenue, there were no railroad tracks north of Adams Street, and none for several blocks south of Adams Street. Adams Street and Compton Avenue, at their intersection, were on a level and of the same grade.

Said Rankin tract- extended north of respondents’ property one block to Market Street, south of said property from Adams Street, across Bernard Street and -Scott Avenue, to Atlantic Street, in which latter street railroad tracks were running east and west, and extending westwardly 800 or 900 feet to Rankin Avenue. Said Rankin tract was a rough prairie, and was used for dairy purposes. About 55 feet west of respondents’ property was a creek or drainage outlet, for said tract, about eight feet deep. Said Rankin tract was enclosed by fences, and respondents’ property was cut off thereby on the north, on the west and on the south.

The wall of the viaduct was completed June 21, 1911. The change of grade begins at the northeast corner of respondents’ property. The original grade from that point southward, took a downward course from said northeast-corner, southward to Adams Street, and the said houses, had been built' in reference to the original grade. The grade for the viaduct runs higher from that point as it extends southward, so that at the north line of Adams Street the elevation of the deck of the viaduct is seven feet and one and one-half inches above the old grade, and in the middle of Adams Street it was still more. Opposite the south line of the house facing on Adams Street, the deck of the viaduct on Compton Avenue is six feet and five inches above the old grade of the street at that point, and the railing extends three feet and five inches above the deck, and the posts extend to an elevation of four feet above the viaduct, making the total elevation of the railing above the old grade at that point, nine feet and ten inches, and of the railing posts, ten feet and five inches.

The viaduct in front of respondents’ property occupies the entire width of Compton Avenue,1) 'except about two feet on the west slide thereof, leaving a space of about two feet between the viaduct wall and the west line of Compton Avenue. The viaduct in front of plaintiffs’ property and extending southward across Adams Street, and for some distance further south, is supported by a solid wall, with a railing on the top and sides of the viaduct. About one block south of Adams Street, the deck of the viaduct is supported by piers or pillars, and assumes the form of a, bridge, permitting railroad tracks to> run underneath. On the west side of the viaduct, from the north end of the opening under the same to respondents ’ property, the ground rises 12 feet, and is too steep for switch tracks. The openings under the viaduct to the south of respondents’ property, for some distance, are too ■ low for trains to pass through.

The nature and extent of the obstruction caused by the building of the viaduct is more clearly shown by the photographs introduced in evidence by plaintiffs marked Exhibits I, J, K, L, M, and N. Respondents likewise introduced in evidence their Exhibit O', which is a photograph of their property ond its surroundings. As everything is sufficiently clear without them, we have not deemed it necessary to incorpoi’ate either of said photographs as a part of the statement herein.

Plaintiffs’ evidence also jtendsi to show that the effect of the building of the viaduct was to cut off all access to respondents’ property from the public streets of the city, except such as might be had through the 15-foot alley on the north side of said property; that prior to the building of the viaduct, the water drained from respondents’ property onto the street and was carried away by the gutter; that since that time, the water drains toward the house and settles there.

The Rankin tract, surrounding respondents’ property on three sides, not long prior to the building of the viaduct, had been leased for a term of 99i years, to the Terminal Railroad Association, the rental being fixed at about four per cent, on a base valuation of $3 per square foot.

Respondents examined four witnesses, who testified as to the difference in the market value of their property just before the viaduct was built, and its market value just after its completion. The property in dimensions being 110 feet by 130 feet, contained 14,300 square feet. Mr. Charles W. Honegger, who qualified himself to testify, gave it as his opinion that the net damage to plaintiffs’ property by reason of the construction of the viaduct was $21,450'. Messrs. Frederick Gr. Zeibig, Fletcher R. Harris and James M. Franeisciis, who Werp men of experience in buying and selling all kinds of real estate in said city, each testified that the market value of respondent's’ property, by reason of the building of said viaduct, was reduced 50 per cent, They valued said property at $2 per square foot, or $28,600, just prior to the building of the viaduct, and at $1 per square foot, or $14,300, immediately after the erection of the viaduct; a reduction of $14,300.

The evidence of defendants, in respect to respondents’ claim of damages, is stated in substance by appellants upon page 5 of their brief, as follows: The appellants introduced witnesses .who qualified as experts on the value of the real estate in question, and these witnesses uniformly expressed as their opinion that, considering the respondents’ property as railroad property, it was not damaged by the construction aud maintenance of the Compton Avenue viaduct. These witnesses gave it as their opinion that the property, considered as residence or tenement property, was damaged by the construction of the viaduct, but that the benefits accruing to said property from the construction of the viaduct and the subsequent vacation- of the public streets between respondents’ property and the railroad tracks, which made the same valuable for railroad purposes, more than off-set the damage which the property may have suffered as tenement or residence property.

At the close of all the evidence in the case, appellants asked the court to direct a verdict in their behalf, which, said request was refused, and an exception saved.

To obviate a repetition, the instructions given, refused or modified, will be considered, as far as necessary, in the opinion.

On May 8, 1917, during the April Term of said court, the jury returned the following verdict:

“We the jury in the above cause find in favor of the plaintiffs on the issues herein joined and assess their damag'es at the sum of $10,000, Ten Thousand dollars, with interest thereon at six per cent, per annum from June 21, 1911, to May 8, 1917, amounting to $3,528.33, three thousand, five hundred twenty-eight and 33-109 dollars, aggregating thirteen thousand, five hundred twenty-eight and 33-100 dollars.”

Judgment was entered in due form upon the verdict aforesaid on said 8th day of May, 1917.

Defendants, in due time, filed their motions for new trial and in arrest of judgment. Said motions were overruled and the cause duly appealed by them to this court.

I. Appellants assign four errors, alleged to have been committed by the trial court, to their prejudice, which will be considered in the order presented in their brief, as follows:

“I. The court erred in instructing the jury to allow as an element of damage to the property in dispute the destruction of access to Adams Street east of Compton Avenue, because the property in question did no.j. Up0I1 -¿hat part of Adams Street.”

We are not advised in the assignment of errors, nor under appellants’ “Points and Authorities,” which of the instructions given at the instance of plaintiffs is complained of under this head. We might, therefore, pass this assignment as too indefinite for consideration, but as appellants, in their argument criticise plaintiffs’ instruction numbered one, we presume the assignment was intended to cover same.

This instruction is lengthy and covers several questions at issue in the case. In said instruction, the jury were required to find that respondents are the owners of the property in controversy; that Compton Avenue and Adams Street, throughtout the year 1911, and prior thereto, were open, public streets or highways, in the City of St. Louis, Missouri; that prior to 1911, the grade of Compton Avenue and Adams Street had been established by said city; that Compton Avenue, in 1911, and prior thereto, had been paved, and improved with sidewalks, gutters and curbing, in accordance with the established grade aforesaid; that appellants, under the ordinance aforesaid, caused the grade of Compton Avenue to be raised and changed, “and changing said grade caused said streets to be obstructed by the viaduct or bridge mentioned in evidence, and that thereby the egress from said real estate to said Compton Avenue and to said Adams Street east of said Compton Avenue and the ingress from said streets into and upon said real estate were destroyed, ... if the jury so find . . . the plaintiffs are entitled to recover from said defendants or any of them who caused said change of grade as aforesaid.”

In our opinion, the contention of appellants, in respect to this instruction, is absolutely devoid of merit. It does not deal with the question of damages, presented in other instructions, nor does it directly or inferentially authorize the jury to find that plaintiffs’ property was damaged on account of the obstruction in Adams Street.

Before the viaduct was built, plaintiffs had access tó Compton Avenue east of their property, and could pass down Compton Avenue, across and into Adams Street. After the viaduct was completed on June 21, 1911, access to plaintiffs’ property was cut off from both Compton Avenue and Adams Street on the east. This is what the jury were required to find, and there is no controversy over this question, as shown by appellants, upon page 10 of their brief, where it is said ;

“Respondents’ property is located on the northwest corner of Adams Street and Compton Avenue, both public streets in the City of St. Louis. The grade of Adams Street was not changed, but remained the same after the construction of the viaduct. There were solid abutments in Compton Avenue and across Adams Street which destroyed respondents’ access to Adams Street east of Compton Avenue. ’ ’

There was no controversy at the trial over the fact that the building of the viaduct on Compton Avenue east of plaintiffs’ property, and the extension of same across Adams Street, left plaintiffs’ property without any access from the east over either of said highways.

We, therefore, conclude, that plaintiffs’ instruction numbered one is not erroneous; that it did not authorize the jury to assess damages in favor of plaintiffs, on account of the obstruction in Adams Street, nor does said instruction deal with the subject of damages. The above assignment of error is accordingly overruled.

II. Appellants claim, that: “The court erred in refusing to instruct the jury, upon the request of appellants, that they should deduct from the amount of damage caused by the construction of the viaduct, any special benefits which may have accrued to the property by reason of the construction of said viaduct. ’ ’

This assignment might well be ignored, as it does not designate which instruction, if any, was refused, nor is there anything in the “Points and Authorities” referring, to any refused instruction. We find, however, on perusing appellants’’ argument, on page 13 of their brief, that the court is charged with error in refusing defendants’ instruction numbered 2, which reads as follows:

“The court instructs the jury that in case you find in favor of the plaintiffs, the damages which may be assessed against the city in favor of the plaintiffs may be measured in either one of two ways:

“Eirst, you may take the difference between the reasonable market value of said property immediately before the grade of the street was changed and said viaduct constructed, as shown by the evidence, and the reasonable market value of said property immediately after such change, if you find that the market value after the change was less than the value before, and so arrive at the damages which plaintiff has sustained; in other words, the difference in market value before and after the improvement of the street may be taken as the measure of damages, and in considering the market value after the improvement you shall not take into consideration any general benefits which may have accrued to said property by reason of the improvement, but you shall consider any special benefits, as defined for you in a subsequent instruction.

“Or, second, you may consider the amount of money which it has cost or would reasonably cost the plaintiffs to raise the surface of their property and the improvements which were on said property at the time of said change of grade, to the same relative position to the present grade as they formerly occupied to the old grade of said street.

“And you are instructed that the defendant, the City of St. Louis, is entitled to have the damages fixed by whichever of the above two methods will show the least'amount of damages to have accrued.”

This instruction, as asked, was properly refused by the court for several reasons: First, taken as a whole, there was no evidence adduced at the trial in support of. the second paragraph of said instruction. Second, taking into consideration the location of plaintiffs’ property and the viaduct on the east of same, with a two-foot space between respondents’ property and the viaduct, we are at a loss to understand, as a practical proposition, how plaintiffs’ property could have been made of any value by raising it to a level with the viaduct. At least, there was no evidence offered sustaining said theory. Third, we are of. the opinion that the instruction was erroneous, in requiring the jury to take into consideration any special benefits, which it is claimed inured to the benefit of respondents’ property by reason of the change of grade and building of the viaduct on Compton Avenue.

Cases may arise in which the principle contended for by appellants should be applied, but this is not one of that class. It is undisputed that before the grade of Compton Avenue was changed, and the viaduct constructed thereon, plaintiffs had abundant access to Compton Avenue on the east side of their property, and likewise had the use of Adams Street, where it is intersected by Compton Avenue. These defendants, by the change of said grade, and the construction of said viaduct, have shut off all access to plaintiffs’ property from either Compton Avenue or Adams Street. There is no way of escape for respondents from their property to the ¡southward, none to the westward, and none to the northward, except by a 15-foot alley. The Rankin property, surrounding that of plaintiffs, is held under a 99-year lease by the defendant Terminal Railroad Association, of St. Louis, Missouri. In other words, the property of respondents has been completely bottled up by the acts of appellants, except as to the alley on the north, and yet we are blandly asked to. reverse this ease because the trial court refused to 'finish a confiscation of respondents ’ property, by directing the jury to charge the same with special benefits. Upon the facts presented in this record, it would have been a travesty upon the law to have given defendants’ instruction two, as asked.

III. Appellants’ third assignment of error, reads as follows:

“The court erred in instructing the jury to allow interest on the amount which they found the property have been damaged by the construction of the viaduct, because interest is not allowed in actions ex delicto.”

No mention is made in above assignment as to any particular instruction given, nor is any reference made in the “Points and Authorities” to any such instruction. Even the argument fails to point out any instruction which it is claimed was erroneous. We find, upon turning to the abstract of record, that the trial court, at the instance of respondents, gave instruction numbered 2, and at the instance of appellants gave instruction numbered 5, which read, when placed in parallel columns, as follows:

Plaintiffs’ Given Instruction No. 2.

“If you find in favor of the plaintiffs, you will assess their damag'es at such sum, not exceeding $25,000, as represents the difference, if any, between the reasonable market value; of plaintiffs ’ said property, immediately before and after the raising and changing of the grade of Compton Avenue adjoining plaintiffs ’ property, and the obstruction of the access thereto by reason of said viaduct or bridge and directly caused thereby, if you so find, together with interest on such sum so found, at the rate of six per cent per annum, from such date as from the evidence the jury find and believe said obstruction of access was complete. ” ■

D©fenda.nts’ Given Instruction No. 5.

“The jury are instructed that the measure of damages, if any, sustained by plaintiffs, is the dif ference in the market value of said property immediately before and after the changing! of the grade of Compton Avenue on account of the construction of the Compton Avenne viaduct, adjacent to plaintiffs’ property, with interest on such sum, if any, at the rate of six per cent per annum from such date as from the evidence the jury find said abutment to said viaduct was complete.”

By reason of the foregoing, appellants are in no position to complain of an instruction which is in harmony with the one given at their request. [Lange v. Mo. Pac. Ry. Co., 208 Mo. 458, l. c. 475; Ellis v. Met. St. Ry. Co., 234 Mo. l. c. 676; Kame v. Railroad, 254 Mo. l. c. 197; Williams v. Gas. & Electric Co., 274 Mo. 1, l. c. 14; Lareau v. Lareau, 208 S. W. 241, l. c. 245, and cases cited; Bettoki v. Northwestern Coal & Mining Co., 180 S. W. l. c. 1023.] The foregoing assignment is accordingly overruled.

IV. Appellants’ fourth and last assignment of error, reads as follows:

“The court erred in refusing to set aside the verdict of the jury on the ground that the same was grossly excessive and unwarranted by the evidence and physical facts.”

In view of the above contention, we have carefully read the record, and have made a very full’statement of the facts in -the case. We find nothing in the record to indicate either passion or prejudice upon the part of the jury. The testimony of the witnesses, in respect to the value of plaintiffs ’ property and the damages sustained, on account of the change of grade and construction of said viaduct, is exceedingly contradictory, and presents a case where it was the peculiar province of the jury, to ascertain the damages sustained.

Y. Finding no error in the record of which defendants can legally complain, we affirm the judgment.

White and Mosley, CG., concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


text:
    EUGENE BENDER, and WALTER BENDER and JOSEPH BENDER, Jr., by Their Next Friend, EUGENE BENDER, Appellants, v. ESTELLE BENDER.
    Division Two,
    March 13, 1920.
    1. RESULTING TRUST: Whence and How It Arises. A trust results in favor of a party who furnishes the purchase money for real estate, when the title is taken in the name of another. It arises from the facts, not from an agreement, hut regardless of and sometimes in spite of an agreement.
    2. -.: Presumption: Conveyance to Wife. The presumption is that the grantee in a deed conveying real estate intends to hold the title in trust for the person who paid the purchase money. But that presumption is oversome by another where the husband pays the purchase price and his wife is named as the grantee, for then the presumption is that he intended the conveyance prima-facie as a provision for her. But the presumption that he intended the conveyance to operate as a settlement on his wife is rebuttable, but only under circumstances consistent with legal principles.
    3. -: Coincident With Conveyance: Future Contingency: Express Trust. A resulting trust must arise, if at all, at the instant the deed is taken. . The transaction must be such that the trust arises the moment the title passes. If the trust in favor of the husband’s children is made contingent upon the happening of an event in the future, such as the legal separation or divorce of the husband and wife, the children do not have a resulting trust in real estate paid for by the husband and conveyed to him and his wife. •

      4. - — : Parol Agreement to Hold in Trust: Express Trust. Allegations that the husband’s money paid for the real 'estate and that it was conveyed to him and her upon an agreement that in case of their legal separation or divorce, she and he would convey to their three children, is grounded on an express trust, which cannot be established by parol.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones>- Judge.
    Affirmed.

      Jesse A. McDonald, Taylor B. Young and T. T. Hind'e for appellants.
    (1) “ Resulting trusts are those which arise from the acts of the parties by operation of law. The party to be charged as trustee may never have agreed to the trust and may have really intended to resist it, yet if his acts have been such as are in honesty and fair dealing consistent only with a purpose to hold the property in trust, a trust will result by operation of law.” Stevens v. Fitzpatrick, 218 Mo. 723; Ferguson v. Robinson, 258 Mo. 129; 39 Cyc. 118. (2) Neither the Statutes of Frauds nor any provision of our statutes precludes parol proof of a resulting trust. Stevens v. Fitzpatrick, 218 Mo. 708; Ferguson v. Robinson, 258 Mo. 113. (3) The existence of an express agreement does not destroy a resulting trust. Shelton v. Harrisqn, 182 Mo. App. 416 ; Smithsonian Institution v. Meech, 169 U. S. 409'. (4) While there is a presumption of an advancement or gift when the husband purchases with his own funds and deeds tó his wife, yet this is a mere presumption of fact and not of law, and may be shown by parol to be a resulting trust. Price v. Kane, 112 Mo. 415; Viers v. Viers, 175' Mo. 453; Siebold v. Christman, 7 Mo. App. 256; Smithsonian Institution v. Meech, 169 U. S. 410.

      Olendy B. Arnold for respondent.
    (1) The court did not err in holding that the plaintiffs ’ petition counted on an express trust. Sec. 2868, R. S. 1909; Hillman v. Allen, 145 Mo. 638, (2) The court did not err in excluding the evidence offered hy appellants to establish a resulting trust. Hillman v. Allen, 145 Mo. 688; Sec. 2868, R, S. 1909.
   WHITE, C.

The appeal is from a judgment of the Circuit Court of St. Louis, dismissing plaintiffs’ hill whereby they sought to establish a resulting trust.

The defendant, Estelle Bender, was the mother oi the plaintiffs, and Joseph Bender, Sr., was their father. At the time' of the trial, plaintiff Eugene Bender was twenty-two years of age, Wlalter Bender was twenty, and Joseph Bender, Jr., seventeen. In 1901 and thereafter Joseph Bender, Sr., purchased three pieces of real estate in the City of St. Louis described in the petition, and caused conveyance to be made to himself and his wife, Estelle Bender. In 1912, Estelle Bender, the defendant, instituted a suit for divorce against Joseph Bender, Sr., and in 1914 a decree was rendered divorcing them from the- bonds of matrimony. At the time of the trial, the thjee children were living with their father, Joseph Bender, Sr.

The petition sets out that Joseph Bender, Sr., and defendant Estelle Bender, were the apparent owners in fee simple of the property, describing it, and then alleges:

“Plaintiffs further state that at the time of acquiring the foregoing described real estate the same was acquired and purchased by the said Joseph Bender, Sr., with his own funds, but he took the title to the same out in the name of himself and the name of Estelle Bender with the distinct understanding and agreement with the said Estelle Bender that in the event there should be any future separation between the said Joseph Bender and Estelle Bender, said father and mother of these plaintiffs, then and in that event the title and interest of the defendant and Joseph Bender in and to all of said real estate should be conveyed to these plaintiffs and that they should thereafter be owners thereof and free from any interest whatever of the said Joseph Bender, Sr., and the defendant, Estelle Bender.”

The petition then alleges that decree of divorce was rendered between Elstelle Bender and Joseph Bender, Sr., by reason whereof the plaintiffs were entitled to have the property described conveyed to them; that Joseph Bender was ready to convey, but Estelle Bender refused "to convey. The prayer is that the title of Estelle Bender he divested and vested in the plaintiffs. The answer is a general denial.

On the trial Joseph Bender, Sr., was sworn; he testified to the relationship’ of the parties, the acquisition of the property, and that he had paid the purchase money1 out of his own funds. The'plaintiffs then offered to show the agreement set up in the petition, the essential part of which offer was as follow^:

“That at the earnest solicitation of his wife Estelle Bender, the defendant here, he (Joseph Bender) consented and agreed to take the title in the joint name of him-elf, Joseph Bender, and Estelle, his wife, on condition ' that in the event that there should ever be any contip''versy between them, or should there ever be a separation or a divorce between them, then and in that event that that property should be, by Estelle Bender and himself, Joseph Bender, conveyed to the three children of Joseph Bender and .Estelle Bender, who are the plaintiffs in this case; that the said Estelle Bender promised and agreed that if he would purchase this property and take the title in thé naipe of himself and her, as his wife, she would do that. ’ ’

This evidence was excluded by the court; plaintiffs duly excepted. Thereupon the hill was dismissed.

I. It is claimed by appellant that a trust resulted in their favor by the purchase of the property under the circumstances alleged in the petition, of which they offered proof as stated.

A trust results in favor of a party who furnishes the purchase money for real estate, when the title is taken in the name of another. In this case, if Joseph Bender, Sr., and Estelle Bender had been strangers to each other and it were shown that he had paid the purchase money and taken the title in the names of the two, nothing' further appearing, a trust would result in his favor for the half interest held in the name of Elstelle. It might be, if there were anything in the transaction to show he intended it as a gift to his children, that a trust would result in their favor, although it is unnecessary to determine that proposition here.

A resulting trust arises from the facts, not from any agreement, hut regardless of and sometimes in spite of an agreement. It is presumed that the holder of the title intends to hold it in trust for the person who paid the purchase money. In this case, however, owing to the relationship’ of the parties, that presumption is overcome by another presumption. When a husband purchases real property with his own funds and causes same to be conveyed to his wife, prima-facie it is presumed that he intended the conveyance as a provision for his wife, and a trust will not result. [Viers v. Viers, 375 Mo. l. c. 453; Curd v. Brown, 148 Mo. l. c. 92.] And where the title in such case is taken in the name of both husband and wife an estate by the entirety occurs. [Moss v. Ardrey, 260 Mo. l. c. 604.] The presumption that the purchase was an intended settlement on his wife is rebuttable and it becomes necessary to inquire under what circumstances the premsumption may be rebutted.

II. A resulting trust must arise, if at all,, at the instant the deed is taken. Unless the' transaction is such that the moment the title passes the trust results from the transaction itself, then no trust resll^s. It cannot be' created by subsequent occurrences. 1 Perry on Trusts, sec. 133; Barrett v. Foote, 187 S. W. 69; Stevenson v. Haynes, 220 Mo. 206; Kelly v. Johnson, 28 Mo. 249; Richardson v. Champion, 143 Mo. 544.

According- to the facts in this case which the plaintiffs seek to establish, no trust resulted at the time the conveyance was made, but it was contingent upon the happening of an event in the future, — the separation of their parents.

A trust results by operation of law from the-facts in the transaction and never by operation of any agreement; from what the parties do — not from what they agree to do. If a parol agreement providing for a conveyance is resorted to, it at once becomes an express trust and not a resulting trust, and cannot be established by parol. [Sec. 2868, R. S. 1909; Thomson v. Thomson, 211 S. W. 52, l. c. 56; Heil v. Heil, 184 Mo. 665, l. c. 676; Price v. Kane, 112 Mo., l. c. 419 ; 1 Perry on Trusts, sec. 134.]

The only acts shown here were the payment by Joseph Bender, Sr., of the purchase money and the conveyance of the property to himself and wife. No further act or fact is presented which would rebut the ordinary presumption that he intended it as a settlement upon his wife. What it is sought to prove is an express agreement on the part of himself and wife to convey the property upon the happening of the contingency, the separation of the two. Under the authorities last cited this could not be shown by parol testimony. It was an attempt to establish an express trust and not a resulting trust.

The-judgment is affirmed.

Bailey and Mosley, GG., concur.

PER CURIAM:' — The foregoing1 opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.