Hynds v. Hynds. On December 18, 1868, she conveyed to A. J. Hynds two lots in Kirksville for $800. Doctor A. J. Hynds, one of the plaintiffs, testified very fully and frankly of his own connection with the estate of his father and the circumstances of the purchase from Kirby of the seventy acres of land conveyed to Richie. He himself according to his testimony received a considerable amount from the estate expended upon his professional education, as well as the Kirksville lots, and he does not intimate that the amount so received was not as much as his full share of his father's estate. That W. G. Hynds, the oldest of the children, received eighty acres of land as valuable as that now in controversy is not questioned. The evidence also shows that in the purchase of the Kirby land Richie was as well taken care of as his older brother. It is also freely admitted that George never received anything from the estate of his father, unless his nurture during infancy by his mother should be charged to him. He received no costly education and, from the time he was big enough, worked on the farm in controversy, contributing in that way to his mother's support. As to Mrs. Mahaffy she seems to have received a good education, both literary and musical, and a piano, the value of which is not stated. At the time of the death of her husband Mrs. Permelia Hynds resided in Millard, but afterward went to live on the land in controversy with her family, including her two sons Richie and George, both of whom remained unmarried. After George became old enough the boys worked it. Until the mother's death the place remained the family homestead. In 1908, Richie died, and George continued to live there and worked the land up to the time of the trial. Richie, at the time of his death, devised his seventy acres to George. This, as stated by one of the witnesses, created some dissatisfaction in the family. To use the words of the witness, it made them sore. Hynds v. Hynds. There was much evidence to the effect that Mrs. Hynds had stated frequently that this land belonged to George; that all the others had received from her their share in the estate of their father and that George had received nothing; and there was evidence to the effect that she had urged him to take her to a conveyancer to make a deed, but that he had been "dilatory" and had not done it. While the plaintiffs proved that George and his brother Richie, when they went to town, used frequently to come home under the influence of intoxicants, and that Mrs. Hynds would sometimes get "cranky," there was no question as to the industry and ability of both, and the farm was kept in good condition. Family I. There seems to be an element in human nature which might with propriety be called the family sentiment, out of which much litigation has vexed the courts. It resents favoritism among relatives of the same degree of consanguinity, and sometimes sets the most affectionate families by the ears. In this case the very best of feeling seemed to prevail in the Hynds family for many years. The death of the mother, who seems from the evidence to have been a woman of strong character and excellent business judgment, did not disturb or change their relations to each other, and the defendant continued, during the succeeding eight years in the unquestioned possession of this land, farming it in connection with his partner as before, without a word of protest or a call to account for his stewardship, until the death of Richie. While the appellants account for this in their testimony by the statement, in substance, that it was a small matter which did not, in their estimation, justify the stirring up of any disagreeable feeling in the family, it is impossible to avoid the inference that the act of Richie in leaving his nice little farm to his partner brother instead of dividing it among all, had something to do with the suppression of these senti Hynds v. Hynds. ments. They are now here in pursuit of their legal rights, which it has thus become our duty to determine. It is gratifying, under these circumstances, to find little in the record to indicate that their statements have been colored by self-interest or personal feeling. Limitations. II. We find little in the record to support the theory that the plaintiffs are barred of their possessory action by the Statutes of Limitation. The legal title of the mother constitutes the very foundation of the plaintiffs' claim. The defendant relies upon her continued acknowledgment of the character of his right, but has shown no act or declaration of his own to indicate any connection between that claim and his position upon the land. They were both there, and we can see nothing in the nature of the possession. of either inconsistent with the interest of the other as asserted in this suit. The possession of the defendant is not shown to have been exclusive of or adverse to the ancestor of plaintiffs during her life. Nor do we think that the evidence discloses such an unequivocal change in the conduct of defendant after the death of his mother and more than ten years before the institution of his suit, as the law requires to constitute notice of a severance of the possessory relation of tenants in common and of a claim adverse to the true title. It would be a dangerous rule which would permit the title of the owner to be divested by any other than the most overt acts brought home to him so clearly that he cannot in reason close his eyes and ears against them. The burden is upon the defendant to fix the time when he began to hold adversely to the true title. [Missouri Lumber & Mining Company v. Jewell, 200 Mo. 707, 716; Hunnewell v. Adams, 153 Mo. 440; McCune v. Goodwillie, 204 Mo. 306, 339, and cases cited.] There can be nothing clandestine or stealthy about adverse possession. [Meier v. Meier, 105 Mp. 411, 431.] As we have said in this case (Hynds v. Hynds, 253 Mo. 20, 33) "to establish such possession in favor of one Hynds v. Hynds. cotenant, as against another, there must be such outward acts of exclusive ownership as to impart notice of adverse possession to other cotenants;" and that "the acts relied on, whether verbal or otherwise, must be open, clear and so unequivocal as to coerce belief." That is still the law in this case. Equitable III. We now come to the real question which divides the parties to this cause and for the trial of which alone it was remanded to the Adair Circuit Court in a former hearing by the court. The defense stands upon the theory that upon the purchase of this land Answer. by Mrs. Hynds a trust resulted to the estate. of her deceased husband of which she was the administratrix and out of the funds of which it was paid for, and that the defendant is now the sole beneficiary of that trust and is consequently the equitable owner of the land and entitled to relief as suggested. The proceeding is ejectment, and as such is an action at law as distinquished from a suit in equity. Its object is to try the right to the possession of the land, and to enforce that right by an appropriate judgment. The Code (R. S. 1909, sec. 1806) provides that the answer shall contain "a statement of any new matter constituting a defense or counterclaim," and "may set forth . . as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both." [Id., sec. 1807.] These provisions are the fruit of the statute providing that in this State there shall be but one form of action. This defense is, within the meaning of the provisions we have quoted, a purely equitable one, and under the practice as it existed before the Code, required an equitable remedy. Its object is to establish a trust in lands, and to afford a complete and appropriate remedy to the equitable owner. A judgment for the defendant in ejectment on that issue would necessarily afford him complete equitable relief and would constitute a Hynds v. Hynds. complete adjudication of the equitable issue involved. [Chouteau v. Gibson, 76 Mo. 38.] The testimony necessary to support it would have to be judged by those equitable rules established for the purpose of protecting legal rights and not by the ordinary rules applicable to the trial of actions at law. While we make these observations for the purpose of directing attention to the fact that we have considered the questions relating to the form of trial adopted in the circuit court and the consequent credit to which its findings upon questions of fact is entitled, we do not consider such questions important in this case in view of the conclusion at which we have arrived. We will therefore treat the issue as an equitable one, triable by the court, and examine the weight and sufficiency of the evidence accordingly. Trust IV. Both parties agree that when a trustee purchases property with trust funds and takes the title in his own name a trust results for the benefit of the trust estate, and that this may be followed in favor of persons not named in the deed in proportion to the amount invested by each. [In re Ferguson's Estate, 124 Mo. 574; Patterson v. Booth, 103 Mo. 402; Hynds v. Hynds, 253 Mo. 20; Freeman v. Maxwell, 262 Mo. 13, 21.] That this rule applies to executors, administrators and guardians of minors, as well as to other trustees, goes without saying. We have only to apply these facts to this simple and salutary principle to arrive at a correct solution of this case. Although the record is not as instructive as we could wish, nor as it should be, there is little difficulty in arriving at a satisfactory result. Mr. Hynds died in June, 1858. Although he had no land he had horses, wagons, cows and other property which indicated that farming was his business and his intention. His estate consisted largely of cash and evidences of indebtedness, inventoried at $5452.91, of which his widow, who had no property of her own, |