
    Elmer L. STRATTON, Jr., and Elmer L. Stratton, Jr., Personal Representative of the Estate of Elmer L. Stratton, Deceased, Plaintiffs-Respondents, v. Ada Penny STRATTON and Thomas L. Blickhan and Dorothy J. Blickhan, husband and wife, Defendants-Appellants.
    No. 48717.
    Missouri Court of Appeals, Eastern District, Northern Division.
    July 16, 1985.
    
      Richard R. Howe, Canton, for defendants-appellants.
    John B. Morthland, Wasinger, Parham & Morthland, Hannibal, for plaintiffs-respondents.
   DOWD, Presiding Judge.

This is an appeal from a judgment for plaintiff in a court tried case which granted an implied trust, either constructive or resulting, on land previously owned by defendant Ada Stratton, and subsequently conveyed to defendants Dorothy and Thomas Blickhan. We find that the imposition of a constructive trust was proper. We affirm.

The plaintiff, Elmer L. Stratton, Jr. (herein E.L.) and defendant Dorothy Blick-han are the only children of Elmer L. Strat-ton, Sr. (deceased) and Sally Betz Stratton who died in 1946. In 1947, Elmer L. Strat-ton, Sr. married defendant Ada Penny Stratton who was divorced and had no children. Two days prior to the marriage Elmer deeded all of his lands to his children E.L. and Dorothy reserving to himself a life estate. Also he obtained a letter from Ada Penny acknowledging that she knew of the transfers before the marriage.

In 1958, the 160 acre tract referred to as the “Betz Place” was purchased from the sister-in-law of Elmer Stratton’s first wife. The deed recording the conveyance read “Elmer L. Stratton and Ada Penny Strat-ton, husband and wife.” From 1958 to 1982, the Betz Place was farmed by E.L. Stratton pursuant to an oral agreement with his father concerning the division of crops grown on the Betz Place. Ada Penny Stratton was not involved in the management of the property or the division of crops from the land.

In 1976, Elmer and Ada Stratton entered into a marital agreement which essentially provided that both Elmer and Ada agreed not to make a claim on the other’s estate, and that Elmer would give $10,000.00 to Ada in order to equalize their estates. Ada admitted she received the $10,000.00 from Elmer.

A host of witnesses testified at the trial that they had had conversations with Elmer to the effect that E.L. was to get the Betz Place. A number of these conversations occurred in the presence of Ada and she did not object to such statements by Elmer. Furthermore, the attorney who prepared the marital agreement testified that he specifically told Elmer and Ada that property they own must be held separately in order to effect the agreement; that property held jointly would have a right of survivorship.

In 1982, Elmer Stratton died. He left all of his realty to his son, E.L., in his will. However, there was no real property included in his estate. The Betz Place passed to Ada Stratton through right of survivorship outside of the estate. In 1983, Ada Stratton sold the Betz Place to defendants Tom and Dorothy Blickhan. Tom and Dorothy, E.L.’s brother-in-law and sister, had knowledge of E.L.’s claim to the land.

The principal issue here is whether the trial court’s finding of a constructive trust or a resulting trust in favor of plaintiff is supported by the record. If the evidence supports either a constructive trust or a resulting trust we must find for plaintiff.

On appeal of a case tried by the court without a jury, “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it unless it is against the weight of the evidence, unless it erroneously declared the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Credibility of the witnesses is for the trial court and we may not substitute our judgment for that of the trial court. Wells v. Wells, 623 S.W.2d 19, 22 (Mo.App.1981); Rule 73.01(c)(2), and it was the duty of the trial court to weigh all the evidence.

There were no findings of fact made by the trial court. Thus all facts are deemed found in accordance with the results reached, and we must accept as true all evidence and permissible inferences favorable to the prevailing party. Elliott v. West, 665 S.W.2d 683, 690 (Mo.App.1984).

“Whenever equity finds that one has title to property, real or personal, originally acquired by any kind of wrong doing, although innocently obtained, now held under such circumstances that retention of the title will result in unjust enrichment, equity may declare such titleholder to be the trustee of a trust constructed by it for the purpose of working out justice....” (emphasis added). Bogert, Law of Trusts, 5th ed. 1973, § 77, P. 287-88; See Swon v. Huddleston, 282 S.W.2d 18, 25-26 (Mo.1955).

Under the evidence, the trial court was justified in entering judgment for plaintiff on the theory that Ada and Elmer Stratton treated the Betz Place from the time of its purchase as belonging to Elmer Stratton and that it would go to his son, E.L., after Elmer’s death. Glauert v. Huning, 290 S.W.2d 126, 132 (Mo.1956). See Kane v. Johnson, 397 Ill. 112, 73 N.E.2d 321, 324 (Ill.1947). Ten witnesses testified at the trial that the land in question was to go to the plaintiff according to his father. Several of the witnesses testified as to Ada Stratton’s knowledge of her husband’s intentions and her assent therein. This evidence was not contradicted at trial by Ada or any other witness. Furthermore, the records show that Ada did not take any active interest in the farm. Elmer Stratton and the plaintiff ran the farm for 25 years dividing the proceeds from its crops between themselves. When the marital agreement was signed in 1976 between Elmer and Ada, their attorney specifically told them that their property must be held in separate names in order to effect the intent of the agreement. Therefore, it is a reasonable inference that Elmer and Ada were mistaken as to how title to the Betz Place was to be held. The parties clearly treated Elmer as the owner, and the mistake in the recording of the deed in both Elmer and Ada’s name is one from which equity will grant relief. Smith v. Wasler, 49 Mo. 250 (1872); Bogert, Law of Trusts, 5th ed. 1973, § 80, p. 293; see Hedges v. Lysek, 84 So.2d 28, 31 (Fla.1955) and Palmer v. Palmer, 390 So.2d 1050, 1053 (Ala.1980). A constructive trust was a proper remedy for the trial court to employ and it was supported by substantial evidence.

Defendants’ next contention on appeal is that the trial court erred in not sustaining defendants’ oral motion to dismiss as to E.L. Stratton, Jr. as Personal Representative of the Estate of Elmer L. Stratton, Deceased. Defendants argued that E.L. Stratton, Jr. as Personal Representative of the Estate lacked standing as a party in that no relief was sought on behalf of the estate. This oral motion was made at the close of plaintiffs’ case.

The trial court’s docket sheet entry of November 10, 1983, states in part as follows:

Plaintiff makes an oral Motion for Leave to File An Amended Petition naming Thomas Blickhan and Dorothy J. Blick-han as well as E.L. Stratton, Jr., as a party plaintiff. Defendant has no objection and enters his appearance for the Blickhans agreeing to accept service on their behalf. The court sustains the motion to file an Amended Petition, (emphasis added).

Plaintiff Elmer L. Stratton, Jr., individually was the original plaintiff. Subsequent to the court’s sustaining the above oral motion, Elmer L. Stratton, Jr., Personal Representative of the Estate of Elmer L. Strat-ton, Sr., was joined and treated as a party plaintiff throughout the plaintiffs’ case. The only logical conclusion is that the docket entry of November 10, 1983, was incomplete in that it did not designate E.L. Strat-ton Jr., as the Personal Representative of the estate. Therefore, it is clear that E.L. Stratton, Jr., was being joined as a party plaintiff in his capacity as the Personal Representative of the estate for the reason that Elmer L. Stratton, Jr. was the original party plaintiff and thus already a party plaintiff. Because the record demonstrates that “defendant has no objection” to this joinder, defendants have consented to the joinder and thus waived any subsequent complaint regarding this issue. See Truck Insurance Exchange v. Bill Rodekopf Motors, 623 S.W.2d 612, 614-15 (Mo.App.1981); State ex rel., Mather v. Carnes, 551 S.W.2d 272, 291 (Mo.App.1977). Defendants’ point is without merit.

It is not necessary to discuss defendants’ last point for the reason it was predicated on a contention of error, which we have rejected, in not sustaining defendants’ oral motion to dismiss as to E.L. Stratton, Jr. as Personal Representative of the estate.

The judgment is affirmed.

CRIST and CRANDALL, JJ., concur. 
      
      . "A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee_ A court of equity in decreeing a constructive trust is bound by no unyielding formula.” Cardozo, C.J., in Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 389, 122 N.E. 378. Dean Pound has referred to this type of trust as "specific restitution of a received benefit in order to prevent unjust enrichment." 33 Harv.L.Rev. 420, 421 (1919).
     