Jones v. Shepley

Citation90 Mo. 307,2 S.W. 400
PartiesJONES v. SHEPLEY, Trustee, and others.
Decision Date06 December 1886
CourtUnited States State Supreme Court of Missouri

A deed of trust being under seal, and reciting a consideration, is presumed to be given for a valuable consideration; and the obligation of the trustee therein, being based on the transfer to him of the property therein described, rests upon a valuable consideration; and, where a husband and wife execute a deed of trust of lands involved in litigation, to secure certain liabilities, and conditioned for the return of a portion of the land to the wife if the litigation results in a recovery of the land by them, or, if a money judgment is recovered, then a certain portion of the money to be turned over to her, and a money judgment is recovered, but, before the money reaches the trustee's hands the wife dies, her administrator is entitled to receive it, and the husband cannot recover it on the ground that the trust was a voluntary one. It was immaterial that the amount to be recovered by the litigation was not defined. The trust did not fail because the wife died before the trustee received the money.

2. EVIDENCE — PAROL — TO VARY WRITTEN INSTRUMENT — DEED OF TRUST.

Where, by the terms of a trust deed, executed by a husband and wife, which is unimpeached, money remaining in the trustee's hands is to be paid to the wife, and the wife dies, the husband cannot, in an action to recover the money, under an allegation that it was made payable to him and his wife, or the survivor of them, introduce parol evidence to vary the terms of the instrument, without alleging mistake in drawing the deed, and asking to have it reformed.1

Appeal from St. Louis court of appeals.

D. T. Jewett, for appellant, Jones. John R. Shepley and John D. Davis, for respondents, Shepley, Trustee, and others.

SHERWOOD, J.

This proceeding has for its object the compelling of the trustee, Shepley, to pay over a fund in his hands to the plaintiff. The facts, gathered from the record, are these: The plaintiff and Julia Jones, his wife, were seized of a tract of land as tenants by entireties. The land was in litigation, and, to secure their attorneys in their fees, and certain persons who had become sureties for them on an appeal-bond, they conveyed the land in question, and also a judgment which they had recovered in the St. Louis court of appeals in respect of the same, together with any other judgment which might be entered in the same cause on an appeal from this court to the supreme court, in trust to the defendant John R. Shepley. The deed provided that, in case Lewis Jones and Julia Jones, his wife, should pay all costs and expenses for which the sureties in their appeal-bond might become liable, and should convey one-half the land in case the land should be recovered in kind, and pay over one-half the money which should be recovered in respect of the land, to their attorneys, in accordance with the contract subsisting between them and their attorneys, then the deed should be void; but, in case they should not do this, then the deed provided, in substance, that the trustee should do it for them. And then come the clauses of the deed which provide for the disposition of the remainder of the land, or of the money, and which alone form the subjects of this controversy. First, the deed provides that, in case of recovery of the land in kind, the trustee, after conveying...

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