Davies v. Keiser
| Decision Date | 30 December 1922 |
| Parties | MARGARET DAVIES v. EDWARD H. KEISER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Granville Hogan Judge.
Affirmed and remanded (with directions).
Sam B Jeffries, A. E. Simpson and P. F. Plummer for appellant.
(1) The contract was abandoned. Donovan v. Beck, 217 Mo. 70 87; Sheppard v. Wagner, 240 Mo. 433; Crews v. Lombard, 182 S.W. 825; Graham v. Finnerty, 232 S.W. 131; Finnerty v. Blake R. E. Co., 276 Mo. 332; 13 Corpus Juris, p. 601, sec. 623; Palais Du Costume Co. v. Beach, 144 Mo.App. 462; Creamery Package Mfg. Co. v. Sharples, 98 Mo.App. 209; Schermerhorn Bros. Co. v. Herold, 81 Mo.App. 466; Chouteau v. Jupiter Iron Works, 94 Mo. 395. (2) The burden was on the plaintiff to establish the trust alleged by proof beyond a reasonable doubt. Dexter v. Macdonald, 196 Mo. 373; Heil v. Heil, 184 Mo. 665, 677; Harding v. St. Louis Union Trust Co., 207 S.W. 69; Reed v. Sperry, 193 Mo. 167, 176; Mulrooney v. Savings & Bldg. Assn., 249 Mo. 629, 646. (3) Plaintiff is barred by laches. Dexter v. Macdonald, 196 Mo. 373; Stout v. Seabrook, 30 N.J.Eq. 137, 191; Kroenung v. Goehri, 112 Mo. 648; Stevenson v. Saline County, 65 Mo. 425; Wells v. Perry, 62 Mo. 576; Loomis v. Mo. Pac. Ry. Co., 165 Mo. 469, 495; Burris v. Cook, 215 Mo. 506. (4) There is no equity in plaintiff's case. Gloecknor v. Kittlaus, 192 Mo. 478; Hargrave v. Conroy, 19 N.J.Eq. 281; Campbell v. Zabriski, 8 N.J.Eq. 738; Metz v. Farnam, 8 Phil. 267; Burley Tob. Sec. v. Gaitskill, 135 Ky. 796; Gould v. Barrow, 117 Ga. 458; Graham Paper Co. v. Pembroke, 124 Cal. 114. (5) The decree was erroneous in ordering sale. Chamberlin v. Waples, 193 Mo. 96, 111; Rohrer v. Brockhage, 15 Mo.App. 16; Martin v. Martin, 250 Mo. 539, 545.
Frank A. Thompson for respondent.
(1) There was no abandonment of the formal written contract. There was no new oral contract of abandonment. That there was any abandonment or any new contract was not sufficiently testified to by Keiser, and was expressly denied by Davies and Vander Lippe, and the trial court found as a matter of fact that there was no such abandonment or such oral contract, and this court will defer to the trial court upon that finding. State ex rel. Wabash v. Public Service Commission, 271 Mo. 155, 168; New England Loan & Trust Co. v. Browne, 177 Mo. 412, 423; Snell v. Harrison, 83 Mo. 651; Parker v. Roberts, 116 Mo. 667; Short v. Taylor, 137 Mo. 525; Mathias v. O'Neill, 94 Mo. 530; Jamison v. Bagot, 106 Mo. 240. (2) Under the contract sued on herein the defendant was trustee of an express trust, holding a one-half interest in the property for Davies, after the advances mentioned therein were paid. As such trustee, and by virtue of the subsequent mutual agreements between Davies and Keiser, there is no question that Keiser held the rents therefrom as trustee of an express trust. Symour v. Freer, 8 Wall. 202; Schaeffer v. Blair, 149 U S. 248; Montague v. Hayes, 10 Gray, 609; Tenney v. Simpson, 37 Kan. 579; Dexter v. MacDonald, 196 Mo. 373; Stevenson v. Haynes, 220 Mo. 199. (3) Laches is not a defense to a trustee in an action by the cestui que trust, unless the delay of the beneficiary is accompanied by other acts which puts the trustee in such position that it would be unjust and inequitable for him to maintain the action due to the unreasonable delay. Delay alone is not sufficient to estop the plaintiff from maintaining the action. His delay must have prejudiced the defendant or led him into such position that he would be prejudiced or injured if the action were maintained. Cantwell v. Crawley, 188 Mo. 57; Summers v. Abernathy, 234 Mo. 167; Conn. Mut. Life Ins. Co. v. Carson, 172 Mo. 69, 73; Haynes v. Wyatt, 202 S.W. 586; 6 Cyc. 301. (4) When Keiser took the $ 7500 deeds of trust for the purpose of using them as collateral to his own note, upon borrowing the money, there was no merger even though Keiser held the record title to the property, for the simple reason that he did not own the property entirely, but held one-half of it in trust for Davies and in equity Davies was the owner of this one-half, and besides, in a court of equity the estates do not merge unless it be the intention that they do merge. Sater v. Hunt, 66 Mo.App. 527. (5) The Statute of Limitations does not run in favor of a trustee of an express trust; for the reason that his possession is also the possession of the cestui que trust. 28 Am. & Eng. Ency. Law, p. 1133. (6) The Statute of Limitations was not pleaded by the defendant in this case, and if relied upon, must be pleaded by defendant in the answer. Benoist v. Darby, 12 Mo. 196; Orr v. Rode, 101 Mo. 387; Stoddard County v. Malone, 115 Mo. 508; Maddox v. Duncan, 62 Mo.App. 474; Bell v. Clark, 30 Mo.App. 224; Patterson on Code Pleading, sec. 802, and notes. (7) This is a suit in equity. In such a suit the parties can have partition, even though the plaintiff is not in actual possession of the property, and the court will do complete and final justice, and to that end make sweeping and even drastic decrees to bring about justice to all the parties. Dameron v. Jameson, 71 Mo. 97; Holloway v. Holloway, 97 Mo. 628, 644; Reed v. Robertson, 45 Mo. 580. (8) Under the circumstances of this case it was proper to order the property sold, so that after the accounting was taken complete justice can be done between the parties in the final decree. The decree before the court now is the interlocutory decree. The final decree is the confirmation of the sale of the real property and the distribution of the moneys on hand. Remmers v. Remmers, 239 S.W. 514; Marsala v. Marsala, 232 S.W. 1049.
This action was for the purpose of partitioning certain real estate in the city of St. Louis, and to secure an accounting for the rents and profits arising therefrom. There was a trial before the court, resulting in favor of the plaintiff, from which the defendant appeals.
In the fall of 1906 P. F. Vander Lippe was in the real estate and loan business in the city of St. Louis. John Davies was an architect and a builder. E. H. Keiser, the defendant herein, had for many years prior and subsequent to 1906 been building houses, selling them and investing in real estate mortgages, stocks and other securities. Vander Lippe had for sale at $ 2500 two lots adjacent to each other, aggregating one hundred feet, on Cottage Avenue, city of St. Louis, belonging to a man named Smith. Vander Lippe offered the lot to Davies for that price, $ 1500 of same to be paid in cash, and Vander Lippe agreed to make two building loans of $ 7500, secured by deeds of trust on the property, with the proceeds of which two flats were to be erected thereon. A second deed of trust for $ 1000 was to be given by Davies for the balance of the purchase price, with a power of attorney to Vander Lippe to collect the rents on the flats to be erected, and apply the same to the payment of the second deed of trust. When Vander Lippe made this proposition, Davies consulted with Keiser and explained to him how the lots could be bought and paid for and the buildings erected thereon as indicated. Keiser agreed with Davies that he would furnish the required $ 1500 in cash. Before the agreement was consummated, Vander Lippe had conferred with a Mr. Wright, and the latter agreed that he would purchase the two first deeds of trust, or the building loans of $ 7500 each, from the proceeds of which the two flats were to be erected. After the talk between Davies and Keiser, the latter paid the $ 1500 in cash, and the two lots were deeded by Smith to a straw man named Cooch. Cooch executed the two deeds of trust for $ 7500 each, one covering each lot, and gave a second deed of trust for $ 1000 covering both the lots, and executed a power of attorney to Vander Lippe to collect the rents from the flats when erected, to pay off the second deed of trust. The two $ 7500 deeds of trust were turned over to Vander Lippe to be transferred by him to Wright, and Cooch made a quitclaim deed to the lots to the defendant Keiser. At the time these papers were signed, Davies and Keiser entered into a formal written contract setting forth the above facts and their interest in the property. This is the agreement which is the foundation of this suit, as set forth in the pleadings.
It was understood that Vander Lippe was to get a commission of two and one-half per cent, or $ 375 for the sale of the two deeds of trust, to be taken out of the $ 15,000 realized from the sale of the notes secured by the deeds. After these papers were executed and the deeds of trust were in the hands of Vander Lippe for sale to Wright, Keiser stated to Davies that he would take the deeds of trust and by using them as collateral at the Jefferson Bank secure the loan of $ 15,000 with which to build the flats and by this course avoid the payment of the $ 375 to Vander Lippe for securing the loan. Davies assented to this course. Keiser obtained from Vander Lippe the two deeds of trust, and thereafter retained them, but told Davies that he had put them up at the Jefferson Bank as collateral to raise the $ 15,000. Several years afterwards Keiser had them released on the record.
It was contemplated that the flats to be erected by Davies were not to cost more than $ 15,000. He was not to make any profit in their building, but was to contribute his services as an architect and builder to equalize the $ 1500 Keiser had advanced, the agreement, as before stated, being that Keiser should furnish $ 1500 in cash, and Davies $ 1500 in services in the drawing of the plans, and the supervising superintending and building of the flats. Davies testified that had the builder's profit been included, the flats would have cost $ 16,500 to $...
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