defendant be divested of the title. Waiving to be held in October, 1908, on the terms for that purpose any question as to the ne- stated, was sufficient, if true, to charge an cessity of an offer to redeem as a prerequi- agreement to that effect, the plaintiff would site to any relief asked for in the petition, we come directly to the question whether, under its allegations and the evidence adduced, the plaintiff is entitled to any relief whatever. [2-4] No law is more familiar than that provision of our statute of uses and trusts which declares that: "All declarations or creations of trust or confidence of any lands, tenements, or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts." R. S. Mo. 1909, § 2868. The effect of this declaration is that a trust in lands cannot be created by oral contract between the parties, for this would be directly in the teeth of the statute; but there are certain trusts called by the generic name of "implied trusts," because they proceed by implication of law out of the particular circumstances of the case, and not from agreement of the parties. The fact that there is no such agreement is often the very foundation upon which the relation rests. Some courts have been disposed to divide these trusts into categories, with distinctive names, as “resulting trusts" and "constructive trusts," but have so confused the lines which divide them from each other as to have materially impaired their usefulness for the purpose of legal exposition. Generally speaking, however, a resulting trust is one which the law implies to meet the requirement of justice that a legal status be given to what is the clear intention of the parties; while constructive trusts rest upon the sound public policy which requires that have taken only the first feeble step in the case he is trying to make, and the provision we have quoted from the statute of uses, as well as the similar provision of the statute of frauds (Id. § 2783), would absolutely bar his further progress. "Equity does not pretend to enforce verbal agreements in the face of the statute of frauds, and the person holding the legal title to real estate will not be decreed to be a constructive trustee, unless there is something more in the transaction than the mere violation of a parol agreement. Accordingly, the mere refusal of a trustee to execute an express trust, or the denial of the existence of the trust by him, does not make a case for raising a constructive trust. And where a conveyance in trust is made voluntarily, without solicitation or undue influence, and no fraud is shown prior to, or contemporaneous with, the execution of the deed, but consists in denying and repudiating the agree from the operation of the statute of frauds. 1 ment to reconvey, it will not remove the case Beach on Modern Equity Jurisprudence, § 234." The same doctrine was condensed in a few Hammond v. Cadwallader, 29 Mo. 166, 169, words by Judge Napton for this court in as follows: bad faith, there is a resulting trust by operation of law; but the simple violation of a parol contract does not constitute such a breach of faith, for, if such was the law, the statute of frauds would be virtually repealed. It is not sufficient to call the transaction a fraud or a trust; there must be some artifice or trick employed to make it so, and a confidence reposwhich something has been lost on one side and ed by one party in another on the faith of gained on the other. Nothing is better settled than that, where a trust of this kind is sought to be enforced, fraud must be distinctly alleged and clearly proved." "Where transactions have been tainted with the laws themselves should not become the 4. It being incumbent on plaintiff not only instruments of designing persons to be used to prove but to plead fraud on the part of for the purpose of fraud and oppression. defendant in connection with the purchase Dishonesty and deceit are not necessary in- of the lands in order to charge him as trustee gredients of the former; while fraud, either with respect to the title be obtained at the actual or constructive, is the very founda- sale, he attempts to carry that burden upon tion of the latter, which are accordingly the theory that the alleged agreement to called, by those who delight in garnering ex-purchase them for plaintiff's benefit was made pressions from the ripened fields of the and used for the purpose of suppressing bidclassical languages, "trusts ex maleficio." 1 Beach, Mod. Eq. Jur. § 226; Brison v. Brison, 75 Cal. 525, 17 Pac. 689, 7 Am. St. Rep. 189; Aller v. Crouter, 64 N. J. Eq. 381, 389, 54 Atl. 426. This is the class into which the trust asserted in this case would naturally fall. With respect to it the statute (Id. § 2869) provides that: "Such trust or confidence shall be of like force as the same would have been if the act had not been made." ding and thereby obtaining the land for less than it would have otherwise brought. For this purpose he pleaded in his petition that he had arranged with one Grant Ashcraft to bid $3,000 on the two-acre tract, but, after he had been given to understand by defendant that he would bid in said property, plaintiff notified Ashcraft of the arrangement, and not to bid; that Ashcraft did not bid on that tract, and defendant was thereby enabled to and did bid it in for $500; that Ashcraft was Is such a trust established by the plead- ready to pay $15,000 on the 320-acre tract ings and evidence in this case? in sections 12 and 13, but that defendant [5] 3. As we have already seen, these bid it in for $500, and bid the remaining land trusts do not rest in contract, but in fraud, described in the petition and included in the so that, should we admit that the statement | sale for $1,800, or $2,800 in all. The foregoof the petition that the defendant gave ing are substantially the pleaded facts out plaintiff to understand that he would bid in of which must be selected those which con tiff was cheated out of his land under the pretense that the defendant was simply taking the legal title to enable him to save it from sacrifice. It remains to examine the evidence to determine how well the plaintiff has maintained his position. [5] 5. It was said by this court, in Pitts V. Weakley, 155 Mo. 133, 55 S. W. 1062, that: "In the case of an express trust in real estate, the burden of the chancellor is relieved, and at the same time his power curtailed, by the provisions of the statute of frauds which requires that it be 'manifested and proved by some writing signed by the party.'" Such charges upon lands are not permitted to lie in the memory of individuals, or to depend upon the truthfulness or honesty of those who claim to be their repository, nor the accuracy of human memory or human statement. The law wisely requires that they shall be preserved in writing, so that their inspection may settle all differences as to their existence and terms. But experience has shown that even the wisest law that human intelligence and foresight can construct may be made by the designing and wicked the instrument of fraud and wrong, and, to place it within the power of a court of equity to guard against this, it is provided that, whenever such trust or confidence shall arise by implication of law, the statute requiring it to be in writing shall not apply. The danger so carefully guarded against in case of express trusts is, as a matter of necessity, boldly encountered in the case of these implied ones, and oral testimony, as dangerous in one case as in the other, but the least of the two evils in the latter, admitted to establish them. This is done with great caution. Although the proof may not be made by something which the eye can see and the hand touch, and in which time with its mutations can work no shadow of change, yet the next best thing may be required in evidence so convincing that no reasonable doubt is left in the mind of the chancellor as to its truth or meaning. The character of this evidence has been described by this court in many ways differing in form, but not in meaning. It is said: That it "must be clear, cogent, and fully satisfying the chancellor." Hillman v. Allen, 145 Mo. 638, 644, 47 S. W. 509. That "the insecurity of titles and the temptation to perjury, among the chief reasons demanding that contracts affecting lands should be made in writing, also imperatively require that trusts arising by operation of law should not be declared upon any doubtful evidence, or even upon a mere preponderance of evidence. There should be no room for a reasonable doubt as to the facts relied upon." Johnson v. Quarles, 46 Mo. 423, 426. To warrant a decree, the evidence should be "of a character so clear, definite, and positive as to leave no room or reasonable ground for hesitancy in the mind of the chancellor." Forrester v. Scoville, 51 Mo. 268, 269. "Such evidence must be well-nigh 86 Mo. 594. And we have spoken to the same effect in many other cases. The language: quoted by Judge Sherwood in Ringo v. Richardson, 53 Mo. 385, 394, from Baker v. Vining, 30 Me. 131, 50 Am. Dec. 617, is particularly striking, and is as follows: "And so cautious have courts been in reception of such evidence [meaning oral], although the proofs have been allowed to be read, yet if stood, the relief sought has been denied.” there was any secret in the cause not under The learned judge further said: "Other authorities hold that the evidence in support of the alleged trust is a dangerous species of evidence, and therefore to avail anyand leave no room for a reasonable doubt in the thing must be clear, strong, and unequivocal, mind of the chancellor as to the existence of such a trust." [6, 7] We have spoken thus far of the quantity and probative force of the evidence required to establish a constructive trust; but it remains to apply the same principles to the establishment of the particular trust alleged in this case. A voluntary or express trust is void, unless manifested and proved by some writing signed by the party who creates it. The court must be able to determine from this writing the existence, terms, and limits of the trust. When it is attempted to prove a constructive trust by oral evidence, the same facts must be shown-the use of words sufficient to create it, and to define its terms and limits. Although the nature of the evidence is different in one case from that in the other, the facts to be proven are alike in both. Pitts v. Weakley, supra, and cases cited. [8] Applying these rules to the evidence, does it prove the creation of a trust, or the terms of the trust charged or attempted to be charged? The rules require that the parties should disclose all the facts necessary to enable the court to understand the transaction, and, if there remains any secret, the relief is denied. There is a secret at the threshold of the transaction which we confess our inability to understand. Mr. Parker claims to have had an arrangement with Mr. Ashcraft by which the latter agreed to bid $3,000 for the two-acre tract, which would have paid the executions then in the hands of the sheriff and left a surplus of more than $1,000, yet he made his arrangement with defendant, if he is to be believed, and told Mr. Ashcraft that there was no use for him to bid on the property. The latter remained at the sale, however, and was, according to his own statement and the allegations of the petition, ready to pay $1,500 or better for the 320 acres in sections 12 and 13, and from $2,500 to $3,000 for the two acres, had he not been called off by Mr. Parker. If these statements are true, and Mr. Parker committed himself to them in his petition, founding his claim for relief upon them, then he did not desire to sell the two-acre tract for enough to pay off the executions out against him; he did not desire to sell the remaining ing his indebtedness; but he did desire that all the property should pass through the execution sale, and come out clean of any liability for his debts other than those already charged against it as liens. Whatever of suspicion we have that Mr. Parker was trying to manipulate this sheriff's sale for the purpose of heading off his judgment and other creditors is strengthened by his own statement that, after he claims to have made this arrangement with the defendant, he had some lots which he owned in Webb City through an unrecorded deed, conveyed directly to Mr. Ashcraft by his grantor, and together they destroyed the original deed to Mr. Parker. The latter stated that he would have to go to the record to ascertain how many judgments were standing against him at that time. He explains the adoption of this method of transferring the title by saying, "That was a transaction between myself and Mr. Ashcraft." Mr. Ashcraft made the following explanation of his own connection with the same transaction: * "Q. You knew the title to that land was in Parker, and Parker had a warranty deed? A. Yes. Q. And you got that warranty deed and destroyed it? A. Yes. * Q. You knew there were judgments against him when you did that? A. Yes. Q. You knew, if the deed to Parker went on record, those judgments would be a lien on that property? A. I did." It is due to this witness, as well as to Mr. Parker, that we should state that he said positively that this deed was not destroyed "for the purpose of cutting out judgments against Parker," but his failure to suggest another explanation forces us to the conclusion that he was working with Parker to hinder his creditors from the collection of their claims. Equity, as we have already intimated, will afford him no assistance to enforce any arrangement he may have made with defendant having this purpose in view. 6. There was little evidence tending to show that the bidding at the execution sale was affected by any alleged arrangement or understanding between Parker and defendant, or that anybody took Mr. Parker into consideration in the matter. Mr. Sharp, who represented the plaintiff in the execution under which the land was sold, was a witness for plaintiff, and testified that before the sale he had tried to get the defendant to stand in with him to buy the property, and that he agreed to do so but did not. The witness was an independent bidder on each piece of the property. Mr. Ashcraft says he went to the sale to bid on the two-acre tract at the request of Mr. Parker, who testifies that when he got there and examined the abstract, which showed two unsatisfied mortgages, he got scared, which the witness supposed was one reason why he refused to buy it. The defendant was called into the talk about these mortgages, and advised that, if they had been paid, as Mr. Parker insisted, they were no longer an incumbrance on the land, but Mr. The evidence of an agreement on the part of the defendant, and its terms, consists of the statement of Mr. Parker, the nature of which is strikingly indicated by the terms in which it is pleaded in the petition, "that the defendant gave him to understand." The remainder of the evidence directed to this point consists of statements said to have been made by the defendant, the character of which is illustrated by the testimony of Mr. Aylor for the plaintiff, which is, perhaps, the most direct and definite of all. We make the following extracts from his account of the conversation on which plaintiff relies, held at witness' house after the advertisement and before the sale under his deed of trust, which occurred March 8, 1909. He said: * Parker; but he said all over what was coming "He never said he was going to buy it in for to him would go to Parker. All he wanted out of it was what was coming to him and expenses. * Q. You did propose to Robinson during this conversation that you and him stand in together and buy in this property? A. Well- Q. Did you, or did you not? A. Yes; I said that." [9, 10] The defendant freely says that after the execution sale he told Parker, in answer to his statement that he had been robbed, that he would give him a chance to redeem. We take for granted that, whenever it was called for, he made this statement as freely to others as to Mr. Parker; but the fact so stated would have no tendency to prove those circumstances of fraud necessary to establish the trust asserted by the plaintiff, which is founded upon an agreement before the sale, and used to suppress bidding and bring about the sacrifice of the property. This class of evidence at its best is not of that clear and convincing character called for in such cases. This court, in Pitts v. Weakley, already cited, said of it: "Even in ordinary lawsuits that is not a high grade of evidence. Every text-writer on the subject treats it rather with toleration than favor. Greenleaf says: 'With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting as it does of the mere repetition of oral statements, is subject to much imperfection and mistake.' Greenl. on Evid. (15th Ed.) § 200." These cautionary statements are peculiarly applicable to the testimony in this case, replete as it is with inconsistent statements, evidences of extreme reticence of witnesses in the treatment of some questions, united with great willingness to impart information with respect to others, and the subtle suggestion of a doubt pervading the testimony of some, whether they were actuated by an unselfish desire to vindicate outraged virtue rather than by chagrin at not having been bidden to the killing. The trial judge, who saw as well as heard these things, had a much better opportunity to judge of them than we have, and his conclusion does not 7. In view of what we have already said, | fendant, the plaintiff, on December 15, 1913, the charges contained in the petition with reference to the foreclosure of the Aylor deed of trust is unimportant. It is founded entirely upon the assumption that at the time of that sale the defendant stood in a fiduciary relation to Mr. Parker, growing out of the purchase at the execution sale in October, 1908, to which we have already referred. filed her motion in said cause asking for temporary alimony. This motion asked for an allowance of $100 as alimony pending the suit, and states that plaintiff has no resources with which to prosecute her action herein, and that defendant is the owner of real and personal property of the value of $5,000. On December 19, 1913, this motion was taken up by the court, both parties ap The judgment of the Jasper county circuit pearing, and after hearing the evidence, the court is affirmed. BLAIR, C., concurs. PER CURIAM. This case coming into banc because two of the divisional judges did not sit, the opinion of BROWN, C., is adopted as the opinion of the court. LAMM, C. J., and GRAVES, BROWN, and WALKER, JJ., concur. FARIS, J., concurs in the result. WOODSON and BOND, JJ., not sitting. court entered an order in favor of plaintiff and against the defendant, allowing her the sum of $100 as suit money. The petition for divorce alleges that plaintiff and defendant had lived together after their marriage in 1908 for about five years; that during their married life defendant had threatened to leave the plaintiff because of her doing sewing for her own folks, and would not treat them courteously when they (her father and mother) visited them; that defendant several times visited one young lady at Cape Girardeau, Mo., and wrote letters to another young lady in Oklahoma, and on plaintiff's asking about these affairs, defendant gave her no explanation, but asked her what part Missouri. June of his property she wanted to set him free; that he several times told her he did not love 1. DIVORCE (§ 211*) ALIMONY PENDENTE her, and that he would take her home and LITE-EVIDENCE-MERITS OF SUIT. never call for her again; that they had sepWhile if it appears, on a preliminary hear-arated once before, but on his acknowledging for alimony pendente lite, that the wife's suit for divorce is without any just or reasonable foundation, no allowance should be made, it is not necessary that there be a full hearing, or that the court be satisfied that a divorce will or should be granted; but making the allowance is largely in the court's discretion, to be interfered with only for manifest abuse. SCISM V. SCISM. (No. 1256.) (Springfield Court of Appeals. 29, 1914.) [Ed Note.-For other cases, see Divorce, Cent. Dig. § 613; Dec. Dig. § 211.*] 2. DIVORCE (§ 214*) ALIMONY PENDENTE LITE-PLEADINGS. Though all the facts tending to show right to divorce, proved on hearing for alimony pendente lite, are not within the allegations of the petition for divorce, an allowance may be made, as the petition may be amended before final hearing. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 626-631; Dec. Dig. § 214.*] Appeal from Circuit Court, Stoddard County: Henry S. Shaw, Special Judge. Suit by Constance Scism against W. Ransom Scism for divorce. From an order allowing plaintiff suit money, defendant appeals. Affirmed.* Mozley & Woody, of Bloomfield, for appellant. Fort & Green, of Bloomfield, for respondent. ing his wrong and promising to be kind and good to her, they resumed their marital relations; that he then induced her to join in making a deed to some land owned by him, conveying the same to his father and mother; that thereupon he again began his bad treatment of her and again told her to get ready and he would take her to her old home and never come after her; that they then finally separated. It is thereupon alleged that defendant has property of the value of $5,000, but that plaintiff is wholly without means of support, or for prosecution of this suit, and a judgment is asked for divorce and permanent alimony. On the hearing of this motion for temporary alimony the court heard the evidence of both plaintiff and defendant and that of one or two witnesses on plaintiff's behalf. It would serve no useful purpose to set out or comment on this evidence. It purports only to be a prima facie showing, and the court did not go very extensively into the real merits of the case. It is sufficient to say that we are convinced, as was the trial court, that the evidence for plaintiff tended to support the allegations of her petition. The evidence of defendant was contradictory thereof. The trial court heard the evidence and granted the motion awarding plaintiff temporary alimony in the sum of $100. From this award defendant has appealed. STURGIS, J. This is a proceeding on motion for alimony pendente lite in a suit for divorce pending between respondent, as plaintiff, and appellant, as defendant. The petition in the divorce suit was filed in the circuit court of Stoddard county, Mo., re- [1] It is not necessary for us to decide in turnable to the March term, 1914, thereof. this case to what extent a party to a divorce After personal service of summons on the de-proceedings must enter on the merits of the case before being entitled to an allowance of such discretion. Adams v. Adams, 49 for suit money on a motion for that purpose Mo. App. 592, 599; Robertson v. Robertson, filed and heard in advance of the trial on the merits. We may grant defendant's proposition that, in order to justify the trial court in granting alimony pendente lite, there must be at least a prima facie showing on the part of the wife, where she is the plaintiff, that she is entitled to the relief prayed for in her petition for divorce, and that her suit is brought in good faith, and not merely for the purpose of obtaining money from her husband. It may well be that, if it appears on such preliminary hearing that her suit is without any just or reasonable foundation, or is prompted by malice or oppression against her husband, then no allowance should be made to her. 137 Mo. App. 93, 119 S. W. 533; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216, 222, 12 S. W. 661. It is held in Libbe v. Libbe, 166 Mo. App. 240, 148 S. W. 460, that the wife, whether the innocent or guilty party, has a right to prosecute or defend a divorce suit, and if without means of her own, the husband, who usually holds the purse strings, must furnish her the means of doing so. The proceedings on such motion, while a part of the same suit, are entirely independent of the controversy on the merits, and it is in no wise decisive thereof. State v. Seddon, 93 Mo. 520, 6 S. W. 342; Libbe v. Libbe, 166 Mo. App. 240, 148 S. W. 460. We rule that the court did not abuse its discretion in making the small allowance complained of in this case. [2] It is said that the petition is deficient in not alleging sufficient facts to warrant the granting of a divorce. It is probably true that the plaintiff's evidence took a wider range than the allegations of the petition, and that facts were proven which were not alleged, but the petition can be amended at or before final hearing so as to cover all the facts. It was not necessary to amend the petition before granting this preliminary motion. Van Horn v. Van Horn, 82 Mo. App. 79. The defendant, by quoting from Weller v. Weller, 154 Mo. App. 6, 10, 133 S. W. 128, and Van Horn v. Van Horn, 82 Mo. App. 79, as to the sanctity of the marital relations, and that courts should not sever such relations except for the most weighty reasons, after a full hearing, seems to want to put the granting of temporary alimony on this same foundation. If the courts should require a full hearing and only grant temporary alimony on the same evidence it would grant a divorce, such would defeat the whole purpose of such motions. It is not intended that there should be a full hearing of the case, or that the court be satisfied that a di- As we must decide this case against appelvorce will or ought to be granted. The mak-lant on the merits, it is not necessary to dising of such allowance is based on the inability of the wife to support herself pending the suit, or to employ attorneys and meet other necessary expenses in prosecuting her action; and the granting of such motions rests almost entirely with the trial court, and its action thereon will not be interfered with by appellate courts except on manifest abuse J., concur. cuss or decide the contention that his bill of exceptions was not signed by a judge having authority to do so. The judgment of the trial court allowing temporary alimony is affirmed. ROBERTSON, P. J., and FARRINGTON, |