sound principle in Missouri

1965“As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless it was the payor’s intent that no such trust should arise; but the presumption of a resulting trust is rebuttable. * * * This presumption is based upon the sound principle that, absent evidence to the contrary, it is not the intent of any such payor to make a gift to the grantee.” Fer *875 guson v. Stokes, Mo.Sup., 269 S.W.2d 655, 659 ,' Davis v. Roberts, supra, 295 S.W.2d 152, 157 .

1965“As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless it was the payor’s intent that no such trust should arise; but the presumption of a resulting trust is rebuttable. * * * This presumption is based upon the sound principle that, absent evidence to the contrary, it is not the intent of any such payor to make a gift to the grantee.” Fer *875 guson v. Stokes, Mo.Sup., 269 S.W.2d 655, 659 ,' Davis v. Roberts, supra, 295 S.W.2d 152, 157 .

1956And see Parker v. Blakeley, 338 Mo. 1189 , 93 S.W. 2d 981, 988 ; Jankowski v. Delfert, 356 Mo. 184 , 201 S.W. 2d 331, 334 ; James v. James, supra, 248 S.W. 2d 623, 627 ; Carr v. Carroll, Mo. Sup., 178 S.W. 2d 435 ; Decker v. Fittge, Mo. Sup., 276 S.W. 2d 144, 147 (2).

1956And see Parker v. Blakeley, 338 Mo. 1189 , 93 S.W. 2d 981, 988 ; Jankowski v. Delfert, 356 Mo. 184 , 201 S.W. 2d 331, 334 ; James v. James, supra, 248 S.W. 2d 623, 627 ; Carr v. Carroll, Mo. Sup., 178 S.W. 2d 435 ; Decker v. Fittge, Mo. Sup., 276 S.W. 2d 144, 147 (2).

1956And see Parker v. Blakeley, 338 Mo. 1189 , 93 S.W. 2d 981, 988 ; Jankowski v. Delfert, 356 Mo. 184 , 201 S.W. 2d 331, 334 ; James v. James, supra, 248 S.W. 2d 623, 627 ; Carr v. Carroll, Mo. Sup., 178 S.W. 2d 435 ; Decker v. Fittge, Mo. Sup., 276 S.W. 2d 144, 147 (2).

1956And see Parker v. Blakeley, 338 Mo. 1189 , 93 S.W. 2d 981, 988 ; Jankowski v. Delfert, 356 Mo. 184 , 201 S.W. 2d 331, 334 ; James v. James, supra, 248 S.W. 2d 623, 627 ; Carr v. Carroll, Mo. Sup., 178 S.W. 2d 435 ; Decker v. Fittge, Mo. Sup., 276 S.W. 2d 144, 147 (2).

1926This is a sound principle supported by safe legal principles, and establishes a method of distinction which can be practically applied. [3 Sedgwick on Damages (8 Ed.), sec. 933.]” Later on, in Matthews v. Railroad, 142 Mo. 645 , l. c. 665, 44 S. W. 802 , the Supreme Court, discussing the Shannon case, supra, made this further observation: “But we think this rule, in order to reach just results, can generally be applied only to cases in-which the injury is done to the real estate itself, as distinguished from injury or destruction of what may be erected or grown upon it, as fences, buildings, c

1926This is a sound principle supported by safe legal principles, and establishes a method of distinction which can be practically applied. [3 Sedgwick on Damages (8 Ed.), sec. 933.]” Later on, in Matthews v. Railroad, 142 Mo. 645 , l. c. 665, 44 S. W. 802 , the Supreme Court, discussing the Shannon case, supra, made this further observation: “But we think this rule, in order to reach just results, can generally be applied only to cases in-which the injury is done to the real estate itself, as distinguished from injury or destruction of what may be erected or grown upon it, as fences, buildings, c

1994First, we are guided by the sound principle followed by this Court in O’Brien v. Blackwell-Baldwin, Inc., 819 S.W.2d 417 (Mo.App.1991).

1983Id. at 889-90 .

1973De Lay v. Ward, 364 Mo. 431 , 262 S.W.2d 628 (en banc 1953).

1973De Lay v. Ward, 364 Mo. 431 , 262 S.W.2d 628 (en banc 1953).

1961Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764, 765 , 768: “Courts of equity will reform written instruments so as to malee them speak the real agreements of the parties in cases in which by mistake or misprision of the scrivener the writing failed to do so, and it will exercise such power not only as between original parties, but as to those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors, or purchasers from them with notice of the facts.” It is our view the only sound rule is where the parties to the instrument

1960It cannot be created by subsequent occurrences.’ Bender v. Bender, 281 Mo. 473 , 220 S.W. 929 , 930 * * *. ‘A resulting trust, as distinguished from an express trust, is one implied by law from the acts and conduct of the parties and the facts and circumstances which at the time exist and attend the transaction out of which it arises.’ Little v. Mettee, 388 Mo. 1223 , 93 S.W.2d 1000, 1009 (8) ; James v. James, Mo.Sup., 248 S.W.2d 623, 627 (10). ‘As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless

1960It cannot be created by subsequent occurrences.’ Bender v. Bender, 281 Mo. 473 , 220 S.W. 929 , 930 * * *. ‘A resulting trust, as distinguished from an express trust, is one implied by law from the acts and conduct of the parties and the facts and circumstances which at the time exist and attend the transaction out of which it arises.’ Little v. Mettee, 388 Mo. 1223 , 93 S.W.2d 1000, 1009 (8) ; James v. James, Mo.Sup., 248 S.W.2d 623, 627 (10). ‘As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless

1958Mitchell Automobile Co., 21 Ga.App. 108 , 94 S.E. 92 ; McGhee v. Birmingham News Co., supra. Still other jurisdictions have adopted what we believe to be the sound rule; namely, that once the owner or his servant has discovered the presence of the trespasser on or partly upon the vehicle he is under a duty to the trespasser to use ordinary care under the circumstances not to cause him injury by any affirmative act on his part.

1958Mitchell Automobile Co., 21 Ga.App. 108 , 94 S.E. 92 ; McGhee v. Birmingham News Co., supra. Still other jurisdictions have adopted what we believe to be the sound rule; namely, that once the owner or his servant has discovered the presence of the trespasser on or partly upon the vehicle he is under a duty to the trespasser to use ordinary care under the circumstances not to cause him injury by any affirmative act on his part.

1958In the recent case of Fernandez v. Consolidated Fisheries, 98 Cal.App.2d 91 , 219 P.2d 73 , a street sweeper endeavored to open defendant's truck door to tell the driver a package had fallen off it into the street.

1958In the recent case of Fernandez v. Consolidated Fisheries, 98 Cal.App.2d 91 , 219 P.2d 73 , a street sweeper endeavored to open defendant's truck door to tell the driver a package had fallen off it into the street.

1957Also, it has properly been held that the serving or giving of notice of intention to condemn (Department of Public Works and Buildings v. Wolf, 414 Ill. 386 , 111 N.E.2d 322 ; Eckhoff v. Forest Preserve Dist. of Cook County, supra; Schumann v. United States, 64 Ct.Cl. 607 ; 29 C.J.S.

1957Also, it has properly been held that the serving or giving of notice of intention to condemn (Department of Public Works and Buildings v. Wolf, 414 Ill. 386 , 111 N.E.2d 322 ; Eckhoff v. Forest Preserve Dist. of Cook County, supra; Schumann v. United States, 64 Ct.Cl. 607 ; 29 C.J.S.

1957Also, it has properly been held that the serving or giving of notice of intention to condemn (Department of Public Works and Buildings v. Wolf, 414 Ill. 386 , 111 N.E.2d 322 ; Eckhoff v. Forest Preserve Dist. of Cook County, supra; Schumann v. United States, 64 Ct.Cl. 607 ; 29 C.J.S.

1954The ruling in the Higgins case seems not to be supported by any cases and we do not deem it to be a sound rule.” See also Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396 , 186 S.W.2d 854, 856 , and Gurwell v. Jefferson City Lines, 239 Mo.App. 305 , 192 S.W.2d 683, 690 .

1954The ruling in the Higgins case seems not to be supported by any cases and we do not deem it to be a sound rule.” See also Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396 , 186 S.W.2d 854, 856 , and Gurwell v. Jefferson City Lines, 239 Mo.App. 305 , 192 S.W.2d 683, 690 .

1954The ruling in the Higgins case seems not to be supported by any cases and we do not deem it to be a sound rule.” See also Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396 , 186 S.W.2d 854, 856 , and Gurwell v. Jefferson City Lines, 239 Mo.App. 305 , 192 S.W.2d 683, 690 .

1954The ruling in the Higgins case seems not to be supported by any cases and we do not deem it to be a sound rule.” See also Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396 , 186 S.W.2d 854, 856 , and Gurwell v. Jefferson City Lines, 239 Mo.App. 305 , 192 S.W.2d 683, 690 .

1953In the Dallas case ( 112 A.L.R. 997, 1004 ), the court said: “In our opinion, the rule that the right of a pensioner to receive monthly payments from the pension fund after retirement from service, or after his right to participate in the fund has accrued, is predicated upon the anticipated continuance of existing laws, and is subordinate to the right of the Legislature to abolish the pension system, or diminish the accrued benefits of pensioners thereunder, is undoubtedly the sound rule to be adopted. ’ ’ Neither of the last two general rules relied upon have any application here in view of t

1945On certiorari the Supreme Court in State ex rel. v. Shain, 165 S. W. (2d) 428 , held such additional claim that the verdict was excessive was not necessary, and, reviewing the Higgins case, supra, and others cited, said, loe. cit. 432: “The ruling in the Higgins case seems not to be supported by any cases and we do not deem it to be a sound rule”.