
    MARY J. FUNK, Appellant, v. CECIL FUNK et al., Respondents.
    St. Louis Court of Appeals.
    Opinion Filed June 8, 1920.
    1. APPELLATE 'JURISDICTION: Partition of Fund: Title to Real Estate Not Involved. In an action by a divorced wife for partition of a fund derived from tbe sale of land, etc., held that title to real estate was not involved so as to deprive the Court of Appeals of jurisdiction.
    2. ESTATES BY THE ENTIRETY: Husband and Wife: Deed to Husband and Wife Creates an Estate by the Entirety. A deed to “C. and M., his wife,” without more, created a tenancy by the entirety. ,
    3. -: -: -: Divorce: Tenants In Common. Where husband and wife hold land as tenants by the entirety, upon the destruction of the marital relation by a divorce decree they become tenants in common.
    4. HUSBAND AND WIFE: Estates by the Entirety: Land Purchased ■ by Husband: Presumption: Provision for Wife. Where a husband purchased land and paid the purchase price with his own funds and took the title in his own and his wife’s name so as to create an estate by the entirety, the presumption is that the interest which the wife thus took in the land was intended as a provision for her, and after divorce her interest in the land as a tenant in common with her former husband was equal to that of the latter.
    Appeal from the Circuit Court of Knox County. — Hon. James A. Cooley, Judge.
    Reversed and remanded {with directions.)
    
    
      F. E. Robinson, F. H. McCullough for appellant.
    (1) The warranty deed, from Roush and wife to Cecil Eunk and Mary J. Funk his wife, created a tenancy by entirety in plaintiff and the defendant, Cecil Funk. Gilson v. Zimmerman, 12 Mo. 386; Garner v. Jones, 52 Mo. 68; Bains v. Bullock, et al. 129 Mo. 117, (31 S. W. 342); Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784; Frost v. Frost, 200 Mo. 497, 98 S. W. 527; Holmes v. Kansas City, 209 Mo. 523, 108 S. W. 9, 1134; Moss v. Ardrey, 260 Mo. 595, 169 S. W. 8. (2) The granting of the divorce made the tenants by entirety tenants'in common and the lands thus held were subject to partition. Russell v. Russell et al., 122 Mo. 235, 26 S. W. 677; Joerger v. Joerger, 193 Mo. 133, 91 S. W. 918. (3) The husband cannot in equity, attack or change such a deed as was made in this case. There is no showing of fraud on the part of plaintiff in the making or procuring of the deed and it is only upon the ground of fraud that such conveyance can be attacked or altered. Moss v. Ardrey, 260 Mo. 595,169 S. W. 10. (4) In communities where the commuity property doctrine prevails, (which doctrine bears a very close resemblance to our tenancy by entirety) the spouse upon divorce, where the community property rights are not adjusted in the divorce proceedings, become tenants in common as to such property and neither party forfeits his or her interest therein. 9 R. O. L. Sec. 319; citing Garrozi v. Dastas, 204 U. S. 64; 27 S. Ct. 224, 51 U. S. (L. Ed.) 369. (5) Where (he husband buys property and has the title placed in the name of the wife the general rule is and the presumption is that it was intended as a provision for her. Siling v. Hendrickson, 193 Mo. 365, 92 S. W. 108; Couch et al. v. Harp et al., 201 Mo. 457, 100 S. W. 10-11; Perry on Trusts, (6 Ed.), par. 143-144. In this case' evidence shows that the defendant, Cecil Punk, conducted the purchase of the land from Roush. No fraud is pleaded or proven in relation to the making of the deed to defendant, Cecil and his wife Mary J., plaintiff herein. The deed is presumptive evidence that no resulting trust was intended, hut that it was intended as a provision for the wife. In the absence of fraud a tenancy by entirety was created. Darrier v. Darrier, 58 Mo. 222; Couch v. Harp, 201 Mo. 464, 100 S. W. 11; Kinzey v. Kinzey, 115 Mo. 496, 22 S. W. 497.
    
      L, F. Gottey and J. G. Dorian for respondent.
   ALLEN, J.

The original petition filed herein alleged that plaintiff, Mary J. Punk, and the defendant Cecil Punir, were the owners, in fee simple, of 120 acres of land in Knox County, as tenants in common, each owning an undivided one-half interest therein; that each of the other two parties defendant was the owner of a deed of trust upon said land, and that the interests of plaintiff and defendant Cecil Punk were held subject to said deeds of trust. Describing the land, the petition prayed for a partition thereof.

It is unnecessary to notice the answers filed to this petition. Subsequently plaintiff, by leave, filed what i§ termed a “supplemental petition,” alleging that the land described in the original petition had been sold by one Ennis, trustee in one of said deeds of trust, at a foreclosure sale, and that the residue of the purchase price, alleged to be about $700, then remained in the hands of said trustee. This petition prayed that the original suit be consolidated with “this cause,” and “the issue of the ownership of said funds, so in the hands of said trustee, be tried and decided in one action;” praying that plaintiff “have judgment as prayed in the original and supplemental petition.”

The record recites that on December 7, 1916, an order of consolidation was made as prayed.

The “second supplemental and amended answer” of defendant Cecil Funk, avers that the land described in the original petition was purchased by him on January 4, 1915, at which time he and plaintiff were man and wife: and that the entire purchase price thereof was paid by him; that in November, 1915, plaintiff brought suit against him for divorce, and in February, 1916, plaintiff was granted a decree of divorce and was allowed suit money and also alimony of $150 out of his estate. This defendant then alleges that the land described in the original petition has been sold under a deed of trust which defendant assumed when he bought the land, and that there remains in the hands of Ennis, the trustee in said deed of trust, the sum of $334.73, as the surplus proceeds of said sale, which the trustee holds subject to the order of the court in this procéeding; that this defendant never received or had in his possession any money belonging to his wife, and she contributed nothing to the purchase of said property; that plaintiff and defendant, having been divorced, could not hold the land as tenants by the entirety, and that defendant, having paid the entire purchase price thereof, is entitled to receive the entire surplus remaining in the hands of the trustee. And said defendant prays that he be declared to be the owner of all of the fund in the hands of the trustee, and that the latter be ordered to pay the same to him.

Ennis, the trustee, entered his appearance and filed an answer in which he stated that he had in his hands $334.73, derived from- the sale of the lands described in the petition; that as to the matters and things alleged in the petitions and answers, he had no knowledge or information sufficient to form a belief; and prayed to be discharged with his costs.

It is unnecessary to further notice the pleadings.

The evidence is that while Cecil Funk and plaintiff were husband and wife the former purchased this land with his own means, plaintiff contributing nothing thereto. The title was acquired from one Roush who conveyed the land by warranty deed to “Cecil E. Funk and Mary J. Funk, his wife,” for the expressed consideration of $6000, subject to two deeds of trust, one a .first deed of trust in favor of an insurance company, for $2600, and the other a second deed of trust, apparently for $1314. Defendant testified: “The amount of the- principal debt secured by the mortgages claimed by me, at purchase, was $3914 and I paid the balance of the purchase price of $6000.00 in cash and I gave a note to Mr. Roush for $300.00.” It appears that plaintiff joined with defendant in the execution of this note, but it does not appear that she contributed anything to the payment thereof.

The evidence shows that plaintiff obtained a decree of divorce from defendant Cecil Funk, as alleged in the latter’s answer; and that subsequent to the filing of plaintiff’s original petition, the second deed of trust was foreclosed and the property sold by the trustee, Ennis, subject to the first deed of trust, and that there remains a surplus in the hands of said trustee of $334.73, which is the bone of this contention.

The trial court, by its decree, finding the facts aforesaid as to the purchase of the property, held that since plaintiff and the defendant Cecil Funk were divorced at the time of bringing this suit, they “do not hold said property by the entirety, and that the defendant Cecil Funk, having paid the entire purchase price for said land, is now, in equity, entitled to receive the entire proceeds derived from the sale of said land.” And it was ordered and decreed that the entire fund in the hands of the trustee be paid to said defendant.

From this judgment plaintiff prosecutes the appeal before us.

No question is raised as to our jurisdiction, and in the state of the record, as shown above, we think that title to real estate is not involved so as to deprive us' of jurisdiction. [Price v. Blankenship, 144 Mo. 203, 45 S. W. 1123.]

The appeal challenges alone the correctness of the decree below upon the facts found. And we regard it as clear that the learned trial judge erred in concluding that defendant Cecil Funk was entitled to the entire fund in controversy. The deed from Roush to “Cecil E. Funk and Mary J. Funk, his wife,” without more, created a tenancy by the entirety. [Moss v. Ardrey, 260 Mo. 595, l. c. 604, and cases cited, 169 S. W. 6.] And upon the destruction of the marital relation, by the divorce decree, plaintiff and her former husband became tenants in common. (See Russell v. Russell, 122 Mo. 235, 26 S. W. 677; Joerger v. Joerger, 193 Mo. 133, 91 S. W. 918.) Respondent concedes this, but contends that though the parties became tenants in common, their respective interests, as such tenants, must, in equity, he determined by the amount originally paid by each on account of the purchase price. This view cannot he sustained. Since this defendant purchased the land and took the title so as to create an estate by the entirety, the presumption is that the interest which the wife thus took in the land was intended as a provision for her. (See Siling v. Hendrickson, 193 Mo. 365, 92 S. W. 105.)

And there is nothing present tending to rebut or repel such presumption. As an executed gift, by way of provision for his wife, the husband was without power to deprive the wife of her interest in the land. And after divorce, plaintiff’s interest in the land, as a tenant in common with her former husband, was equal to that of the latter.

We are not here concerned with the rule applicable where land is purchased with the money of one person and the title is taken in his name and that of another, the parties being strangers or standing in no special relation to each other. And the view stated above is in no wise in conflict with the rulé of decision that where a husband uses in part his wife’s money to purchase land, without her written consent, and takes the title in the name of himself and wife, the conveyance at the suit of the wife will be held to make the parties cotenants in the proportion that the money contributed by each bears to the purchase price. (See Moss v. Ardrey, supra.) Such act on the part of the husband falls under the ban of the Married Woman’s Acts, and constitutes a fraud upon the wife.

In Darier v. Darier, 58 Mo. 222, it was held that land purchased by the husband with hi§ money, the title to which was taken in the wife’s name, would be presumed to be an advancement for her benefit; but that fraud on. her part in so obtaining the title would rebut the presumption. In the case before us there is no suggestion of any fraud on-the part of the plaintiff. And in Pitkin v. Mott, 56 Mo. App. 401, l. c. 404, it is said: “But if it be conceded, as the appellant argues, that Mott (the husband) paid for the property when purchased from Rust, as it was not shown that he (Mott) was indebted at the time or that he had any intention of defrauding creditors,. the transaction would constitute prima facie a gift to the wife, and the proceeds of a subsequent sale of the real estate could be held by her free from the claims of her husband or his creditors.” See also Gilliland v. Gilliland, 96 Mo. 522, 10 S. W. 139.]

Tu Aeby v. Aeby, 192 S. W. 97, cited and relied upon bv respondent, the land in controversy was acquired while the parties were husband and wife, the title being taken jointly in their names. Subsequently the husband obtained a divorce, and thereafter the wife, claiming to have paid the entire purchase price, brought suit to divest the husband of any apparent interest in the land. The husband filed a cross-bill asking that plaintiff be divested of any apparent interest in the land, and that the same be vested in him. on the around that he paid the full consideration therefor. In the Supreme Court, the commissioner’s opinion, adopted by the court, discusses at some leuslh the testimony adduced, pro and con as to the amount of the purchase price paid by each, concluding by affirming the decree below dismissing both plaintiff’s bill and defendant’s cross-bill and leaving the parties equal owners as .tenants in common. It is argued by respondent that the opinion proceeds upon the theory that if the husband had in fact paid all of the original purchase price of the land, he would have been entitled to have .the full title decreed in him. While the treatment of the case may suggest this, the opinion-does not in terms so hold; and we cannot assume that had the court found the facts therein to be as alleged by the defendant, it would have held, contrary to what appears to us to be well established principles, settled by the decisions of this state.

The judgment is accordingly reversed and the cause remanded with directions to enter a decree awarding the fund in controversy to appellant and respondent Cecil Funk in equal parts; the cost of this appeal to be taxed against the respondent.

Reynolds, P. J., and Becker, J., concur.  