Brandon v. Carter
| Decision Date | 05 February 1894 |
| Citation | 24 S.W. 1035,119 Mo. 572 |
| Parties | Brandon v. Carter et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
This is an action of ejectment. In the petition it is alleged that plaintiff was duly appointed trustee for John T. Jacobs and his children, by virtue of the will of George R. Jacobs deceased; that he accepted said appointment and qualified as trustee; that, as such, he was, on the seventh of March, A. D. 1888, entitled to the possession of a certain tract of land, which defendant, Mr. Carter, and his tenant, Mr. Kelly then occupied, and which they unlawfully withhold, etc.
The petition contained the usual allegations in ejectment, and asked judgment for possession, rents, profits, etc.
The answer admitted the possession of defendants, and denied generally the other allegations.
The cause ultimately reached the Audrain circuit court by change of venue, and was there tried before Judge Hughes and a jury.
Plaintiff introduced the will of Dr. George R. Jacobs and a codicil thereto. Dr. Jacobs was the father of John T. Jacobs and grandfather of the latter's children, for whose use and benefit this action was brought. He died in 1877, possessed of the land which forms the subject of the action.
Defendants claim by a title derived from the said John T. Jacobs through a sheriff's sale and deed, conveying to the defendant, Mr. Carter, all the right, title and interest of John T. Jacobs in and to the land in question.
It is conceded by both parties that, under the will of his father John T. Jacobs was the beneficiary of one undivided fourth part of said land, for and during his life, and that his children were beneficiaries of the remaining three-fourths.
After making his will, the testator, Dr. Jacobs, signed an absolute deed to John T. Jacobs, conveying to him a fee simple title to the whole land; but plaintiff denied that this deed was ever delivered to the grantee, John T. Jacobs.
Upon this proposition there was a conflict of testimony. The jury under instructions of the court, found in favor of the plaintiff on this issue. That decision is not sought to be reviewed, and is no longer controverted.
The deed being thus decided inoperative, left John T. Jacobs with no other or greater title than that conferred on him by the will, viz.: A beneficial, undivided, one-fourth interest during his life, which, by virtue of the purchase, and sheriff's deed, has been acquired by the defendant, Mr. Carter.
By the will of Dr. Jacobs, Robert B. Price, of Columbia, was named as trustee to hold said land in trust for the use of John T. Jacobs and his children, in the shares above indicated.
The will, as modified by the codicil, declared that, during the life of John T., he and his children should enjoy the rents and profits of the land in the proportions aforesaid, and at his death it should be the duty of the trustee to convey the land to his descendants. Furthermore, that if John T. preferred to live on the estate and cultivate it, the trustee should allow him to do so, without charging him rent therefor.
As part of plaintiff's case he introduced the record of a proceeding in the circuit court of Callaway county (where the land is situated), appointing him trustee to hold said land under the terms of the will of Dr. George R. Jacobs, in the stead of Mr. Robert B. Price, who had never accepted the trust.
That proceeding was instituted at the November term, 1887, by John T. Jacobs and his children, who then were minors. These parties joined in a petition to the circuit court stating the nature and extent of the trust, substantially as above (but with greater particularity); that Robert B. Price, the trustee named in the will, "refused, failed and declined to accept the office and trust as said trustee, and no one is now authorized to take charge of said property;" that certain of the petitioners (naming them) were minors, and that all of them were interested in the rents of said land; and praying the court to "appoint some suitable person to act as trustee under said will and take charge and manage said real estate," etc., and for general relief.
This petition was signed by attorneys appearing for the petitioners. But no guardian or next friend for the minors was appointed.
Upon consideration of the petition, the court, November 28, 1887, made an order "that Francis Brandon" (the plaintiff who brought the action now at bar) "be and he is hereby appointed trustee in this case."
Mr. Price was not a party to that proceeding, and defendant claims that it was insufficient to vest the title to the land in plaintiff as trustee under the will. But the trial judge overruled that contention.
There was evidence to support the other issues on plaintiff's part; namely, as to the possession (by defendant and his tenant) of the land in controversy, and as to plaintiff's demand for rents, profits, damages, etc.
The defendant offered considerable evidence, chiefly directed to the question of the delivery of the deed of Dr. Jacobs to John T. Jacobs, during the lifetime of the former. But as that issue was found for plaintiff and is not made the subject of exception, the instructions and rulings on that branch of the litigation need not be set forth.
The jury found for the plaintiff and assessed damages and monthly rents as stated in the opinion. Judgment was entered accordingly and defendant appealed after an unsuccessful motion for a new trial.
The other essential facts appear in the opinion.
Affirmed.
Gordon & Gordon and Odon Guitar for appellants.
(1) Francis Brandon was not vested with the legal title to the land in question, by virtue of the proceedings in the circuit court of Callaway county, instituted for that purpose. This proceeding was evidently not instituted under the provisions of our statute, authorizing the circuit courts to substitute trustees in cases where those appointed have "died, become insane," etc., as the application for such substitution in evidence in this case recites none of the causes authorizing the interposition of the courts, and, besides, the application was not founded upon the "affidavit of the parties," nor was the petition, which was signed alone by the attorneys, sworn to by them. R. S. 1889, secs. 8683, 8684. The title to the land vested in R. B. Price, as trustee under the will. He was appointed under the original will, and his appointment was reaffirmed in the codicil made a year afterward; he was also named as executor in the will; he resides in the same county where the will was probated, as shown by the will. It is therefore to be presumed that he had knowledge of his appointment, and in the absence of any evidence, positive or circumstantial, tending to show that he had declined or renounced the trust, the law raises the presumption that he had accepted it. 1 Perry on Trusts, sec. 267; Barrett v. Stillmore, 13 N.Y. 83. After a lapse of years an acceptance of the trust will be presumed, though no act be done by the trustee to indicate such acceptance. Roberts v. Mosley, 51 Mo. 282; 64 Mo. 507; 1 Perry on Trusts, secs. 259, 267. There was no occasion for any action on the part of Price as trustee. He was the mere "naked repository" of the title, until occasion should require action; when a bond became necessary, if he failed to give it, the statute provided a method by which the cestui que trust could compel him to do so; but to do even that, the law required that he should be made a party to the proceedings. R. S. 1889, sec. 8625. The title having vested in Price it could not be divested "by mere disclaimer or renunciation." It could only be done by decree of court, Price being a party thereto. 1 Perry on Trusts, sec. 268, and authorities cited. Price was not made a party to the proceedings in the Callaway circuit court and could not be affected thereby. There is another fatal error in the proceedings of the Callaway circuit court, under which Brandon was appointed trustee. Three of the petitioners, as shown by the petition, were minors. They were not represented by "guardians, curators or next friends," and we insist that they were in no way bound or affected by the action of the court in that proceeding; nor are they bound by the results in this case, in which Brandon assumes to act as their trustee and legal representative, without authority under the will, or any derived from the proceedings had in the Callaway circuit court. Gamache v. Prevost, 71 Mo. 84. (2) The following instruction given at the instance of respondent, is unquestionably erroneous under the testimony in this case. "The court instructs the jury that if they find for the plaintiff, the measure of damages should be the rental value of the land from the seventh day of March, 1888, to the present time, not to exceed $ 2,000; and the jury should further find the value of the monthly rents, not exceeding $ 100 per month." The patent error of this instruction is made manifest by the verdict of the jury. The instruction is bad in another particular, and that is that it should have instructed as to the rental value of the land under the conditions as found by the verdict, that it was subject to an undivided, instead of a sole ownership.
Crews & Thurmond and C. B. Sebastian for respondent.
(1) The first question presented by appellants is: "Was the respondent, Francis Brandon, vested with legal title to the land in question, by virtue of the proceedings of the circuit court of Callaway county instituted for that purpose." First. Before proceeding to answer this question, respondent claims that appellant is not in a position to ask it or have it considered by this court; for the reason that the common source of title to the real...
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