This'action was 'commenced in the circuit court of Jasper county, taken thence on appli*588cation of plaintiff by change of venne to the circuit court of Greene county, where it was tried upon issues raised by a second amended petition filed by the plaintiff and the answer of the defendant thereto, which was a general denial. The finding and judgment was for the defendant,- the plaintiff’s bill dismissed, and she appeals.
It appears that the defendant is in the possession of and holds the legal title to the west half of section 18, township 30, range 30, situate in said county of Jasper containing 320 acres of land, which he purchased of one James McFarland and of which he was put in possession under a decree of court in 1882, paying therefor the sum of $6,500 in money, other land and notes, and receiving deeds from other parties in whom the legal title seems to have been vested. That the plaintiff and the said James McFarland were married on the nineteenth of March, 1861, and were divorced m the year 1887.
This proceeding is in the nature of a bill in equity to declare the defendant a trustee of the legal title of said real estate for her benefit, on the ground that at divers times during the existence of the marital relation she furnished her husband sundry amounts of money which was her separate estate, to pay part of the purchase money for buying outstanding title to and removing incumbrances from said real estate, amounting in all to the sum of about $2,000 upon an agreement with him that the same should be conveyed to her as her separate estate in fee simple, but which her said husband, fraudulently confederating with one James F. Hardin to cheat her out of her said estate, failed to do, but caused the deeds to said real estate to be made to the said Hardin and his wife from whom it is to be inferred the defendant through other subsequent conveyances made and con*589trived by her husband, as she alleges for the same purpose, finally derived title. She seeks to charge the defendant on the ground that when he purchased he had notice of her equities in the land.
The plaintiff testifies that this land was purchased by her husband before the marriage for $1,800, of which he had paid $800; that he had' received a deed for forty acres of it and held a title bond for the remainder; that she furnished him these moneys between the years 1867 and 1869, and that they were applied by him in payment of the purchase money remaining unpaid and in buying in outstanding titles and removing incumbrances from the land. That at the time she commenced furnishing these moneys she had about $3,000; that $1,600 dollars of it she had saved before marriage from her wages as a dress maker, sewing at houses by the day'in St. Louis; that when she was married she was twenty-four or twenty-five years old and had been dress making fourteen or fifteen years. That after-wards in 1864 she received a present of $1.000 from a friend or friends in St. Louis, and that she made the remainder honestly; that she kept this money with her mother in Manchester, St. Louis county, until 1867, when she brought it home and afterwards- kept it at home, where she was then living with her husband in Jasper county.
The said James McFarland testified for the defendant that the plaintiff had no money when he married her, not more than $10 and owed about $50. That she never paid any money on the land; that the several payments claimed by her to have been made with her money, were paid by him, out of his own money. It is not shown by the evidence that the defendant had or could have had any knowledge of these alleged dealings between the husband and wife, and the Hardins, even had they been satisfactorily shown to have taken place. *590The plaintiff testifies that she told the defendant, before he bought, that James McFarland had no interest in the land and that the land was hers. This the defendant denies, and testifies that he did not know she claimed any interest in the land until after he bought; that he bought upon the faith of an abstract of the title as appeared upon the records, and did not learn that she claimed the land or any interest in it until after he had bought.
There was evidence tending to show that about the year 1875 the plaintiff became insane and was confined to the lunatic asylum during nine months of that year; that she and her husband did not get along well together; that he was a litigious man, and had many difficulties and lawsuits; had been in the legislature ; had been a bad man during the war, and was of unsavory reputation among his neighbors.
On the question whether the plaintiff ever had any separate estate, which could have gone into this land, without which there is nothing in the case we have her evidence on the one side and her husband’s on the other. Bearing directly upon this question we have no other evidence. After carefully reading all the evidence in this record more than once, we find it impossible to say on which side the truth lies. But even if we could say that the preponderance was in favor of the plaintiff, this would not be sufficient to authorize a court of equity to impress upon defendant’s title an implied trust for the plaintiff’s benefit. “The rule in this court is settled by a uniform line of decisions, that parol testimony, in order to accomplish such an object and secure such an end, must be clear, strong and unequivocal; so definite and positive as to leave no room for doubt in the mind of the chancellor, as to the existence of such trust.” Allen v. Logan, 96 Mo. 591. “There should be no room for a reasonable doubt *591as to the facts relied upon to establish the trust.” Adams v. Burns, 96 Mo. 361; King v. Isley, 116 Mo. 155, and cases cited. Here everything is in doubt and we do not see that the chancellor could do otherwise than dismiss the bill on the evidence. The judgment is affirmed.
All concur; Barclay, J., in a separate opinion.SEPARATE OPINION.
Barclay, J.The judgment "reached meets my entire concurrence; but, with due respect, not the observations as to the necessity of establishing the existence of a trust beyond a reasonable doubt. There are remarks to that effect in some of the reported cases, but there are also decisions'having an opposite tendency. (
In Edwards v. Knapp (1888), 97 Mo. 439, it was held that “in civil cases the rights of the parties are to be determined by the preponderance of the evidence” (following Marshall v. Ins. Co., 43 Mo. 586); and approving the position taken in the dissenting opinion of Sherwood, J., in Polston v. See (1873), 54 Mo. 296. In the latter it is said that “no one ever had the temerity to contend that the mind of the chancellor, before entering a decree, had to be satisfied of the truth of the allegations of the bill beyond a reasonable doubt” (54 Mo. 300). The chief position in that opinion is that a charge of crime, when -an issue in a civil cause, need ,be established only by a -preponderarlee of evidence. That rule is now -the settled law in this state. Smith v. Burns (1891), 106 Mo. 101.
But it would be singularly inconsistent to hold that a charge of murder, horse stealing or other felony, contained in the pleadings of a civil action, might be sufficiently sustained by a mere preponderance of testimony, while a charge of breach of trust, or fraud, in a *592different civil action involving equitable rights, required proof beyond a reasonable doubt.
There seems no good reason for such a distinction, nor for applying to suits in equity the rule as to the amount of evidence required to warrant conviction in a criminal case. That rule had its origin in the tenderness of the common law for persons charged with crime, and its humane solicitude that none should be convicted concerning whose guilt there was a substantial doubt. But the reasons that justify its existence as part of the law of criminal procedure do not sustain' its application to civil suits, as the decisions above cited show.
In my opinion the trust may be established by a preponderance of testimony. By which is meant that the evidence to prove it should be clear and convincing, such as to satisfy the conscience of ., the trial judge of its truth. Richardson v. Robinson (1846), 9 Mo. 801. That is all that any of the cases really mean, in my opinion, by the remarks requiring proof beyond a doubt, though the language used is, at first glance, susceptible of the construction now placed upon it.
It seems to me that the court never before intended to solemnly adjudicate that the rule as to the amount of proof required to convict of crime was applicable to equity causes, although not applicable to actions involving merely legal rights. But if the language of our decisions is supposed to express such an intention, then it should be limited as above indicated. It would at times amount to a denial of justice, in cases exhibiting substantial equity to require that every reasonable doubt in the judge’s mind should be removed by proof, before he might properly grant equitable relief.
It appears to me that suitors in causes of that kind should have the benefit of the general rule applicable to other civil actions in respect of this subject.