Hood v. Nicholson

• Citation: 38 S.W. 1095,137 Mo. 400
• Parties: Hood, Appellant, v. Nicholson et al
• Decision Date: 09 February 1897
• Court: United States State Supreme Court of Missouri

38 S.W. 1095

137 Mo. 400

Hood, Appellant, v. Nicholson et al

Supreme Court of Missouri, First Division

February 9, 1897

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

J. M Lewis and C. M. Napton for appellant.

(1) The ten years bar of the statute of limitations governs the remedy in this case. Such is the law applicable to suits seeking to enforce trusts in real estate. Ins. Co. v Smith, 117 Mo. 261. (2) The possession by Nicholson of the land claimed was that of a trustee, and will not be deemed adverse as against plaintiff unless there has been an open disavowal of the trust fully and unequivocally made known to the beneficiary. Goodwin v. Goodwin, 69 Mo. 617. (3) After the agreement set out in the bill was made between plaintiff's grantor and Nicholson, the latter became an equitable mortgagee until the end of the litigation. The staleness of a claim will not prove a valid defense when the facts by which it exists would not afford a bar in equity. Bollinger v. Chouteau, 20 Mo. 89. (4) If it be held that the petition shows that the statute began to run in 1883, to wit, at the termination of the Farish case, then the ten year limitation is saved by the further allegation that plaintiff brought an action in 1892 in which he suffered a nonsuit or dismissal, and this case was brought within a year thereafter.

Frank K. Ryan for respondents.

(1) Plaintiff's claim, even if considered as a trust relating to real estate, is barred by the ten year clause of the statute of limitations. R. S., sec. 6774; Bruce v. Tilson, 25 N.Y. 194; Wood on Limitations [2 Ed.], p. 324, note 4; Smith v. Ricords, 52 Mo. 581; Ricard's Adm'r v. Watkins, 56 Mo. 553; Bent v. Priest, 86 Mo. 488. (2) Plaintiff's claim, being one for which an action at law for money had and received would lie, is also barred by the five year clause of the statute of limitations. R. S., sec. 6775; Hann v. Culver, 73 Hun, 109; Butler v. Johnson, 111 N.Y. 204; Roberts v. Ely, 113 N.Y. 128; Mills v. Mills, 115 N.Y. 80. (3) The probate court had jurisdiction to try plaintiff's claim, and same should not be heard in a court of equity. R. S., 184; Tettington v. Harker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 271; R. S., sec. 172; French v. Stratton, 79 Mo. 560; Hammons v. Renfrow, 84 Mo. 341; Priest v. Spier, 96 Mo. 115. (4) It appears by the amended petition herein that the assignor of plaintiff has been guilty of such laches that plaintiff is not now entitled to be heard in a court of equity. Klein v. Vogel, 90 Mo. 239; Burdett v. May, 100 Mo. 13; State ex rel. v. West, 68 Mo. 229; Lennox v. Harris, 88 Mo. 491; Dunklin Co. v. Chouteau, 120 Mo. 596; Burgess v. Railroad, 99 Mo. 508; Reel v. Ewing, 71 Mo. 29. (5) It appears by the bill herein that the interest claimed by plaintiff has passed by assignment of plaintiff's assignor, John S. Hood, to his assignee, Henry B. Davis. Church Society v. Branch, 120 Mo. 226; Kennedy v. Siemers, 120 Mo. 73. (6) No right of action could ever have occurred on the alleged contract set forth in plaintiff's amended petition, because such alleged contract only purports to be a promise without consideration made on a certain condition, which condition has never been performed. Angell on Limitations [6 Ed.], sec. 113; Train v. Gold, 5 Pick. (Mass.) 384; Kennedy v. Siemers, 120 Mo. 73; Reel v. Ewing, 71 Mo. 29.

OPINION

Robinson, J.

This case is here on appeal by plaintiff, from the judgment of the circuit court of the city of St. Louis, sustaining a demurrer to the following bill or petition filed by plaintiff:

"I.

"Plaintiff states that defendants are the heirs at law of one David Nicholson, who died intestate in the city of St. Louis, on the twenty-sixth day of November, 1880, leaving to said heirs a large estate of the value of $ 250,000, consisting of both real and personal property.

"II.

"That on the first day of July, 1870, and prior thereto, John S Hood and John B. McKay were the owners of the following real estate, to wit:

"First. Lots numbered 1, 2, 3 and 4, of block number 2, of John E. Cook's subdivision of a part of United States survey number 1583, and containing in the aggregate two hundred and seventy feet front on the north line of Finney avenue by one hundred and forty feet deep to an alley.

"Second. Also lots numbered 9, 13, 14, 15, 16 and 17, on said block 2, containing an aggregate of three hundred and twenty-five feet on the south line of Cook avenue, by one hundred and forty feet deep to an alley.

"Third. Also a lot in said survey 1583, containing a front of fifty-five feet on the west line of Grand avenue by one hundred and fifty feet deep to an alley, bounded north by Cook avenue, and east by Grand avenue.

"Fourth. Also a parcel of land in said survey, beginning at a point in the west line of Grand avenue one hundred and five feet south from the south line of Cook avenue, and thence south one hundred feet, thence west one hundred and fifty feet to an alley, thence north one hundred feet, and thence east one hundred and fifty feet to the point of beginning.

"Fifth. Also another lot in said survey, commencing at a point on the north line of Finney avenue one hundred and sixty-five feet from the west line of Grand avenue, and thence west along the north line of Finney avenue eighty-four and ten hundredths feet, thence northwardly at right angles with Finney avenue one hundred and forty-five feet to an alley, thence east along said alley seventy-one and one fourth feet to another alley in the rear of the two lots last above described, thence south along the west side of the last named alley one hundred and forty-five feet to the place of beginning.

"Sixth. And also lots 22, 23, 24, 25, 26, 27, 28, and 29, in block 6, in Daniel D. Page's second western addition to the city of St. Louis, all in the city of St. Louis and state of Missouri.

"III.

"Plaintiff alleges that at said time said land was of the value of about $ 75,000, and said McKay and Hood, in the month of July, 1870, borrowed from one Thomas Primrose, of Aberdeen, Scotland, the sum of $ 6,500, through the agency of the said David Nicholson, and to secure the repayment of the said sum and interest at the rate of ten per cent per annum, they executed a deed of trust to said Nicholson as trustee, to secure the notes for said sum. And about the month of January, 1871, said Hood and McKay borrowed from said Thomas Primrose, through the agency of said David Nicholson, the further sum of $ 11,000, and to secure payment thereof and the interest thereon, they executed to said Nicholson a second deed of trust upon said property.

"IV.

"Plaintiff further alleges that the interest on said loans, aggregating the yearly sum of $ 1,640, and also all taxes on said lands were paid by said Hood and McKay from the date of said loans down to about the month of October, 1877, at about which date they suspended further payment for the reasons hereinafter stated.

"V.

"Plaintiff further alleges that the reason why said Hood and McKay suspended payment of said interest was as follows:

"That said Hood and McKay held said lands or the greater portion thereof by conveyance from one John E. Cook, and in or about the midsummer of 1875, one Farish under a claim of paramount title brought in the circuit court of St. Louis aforesaid, against said Cook, an action of ejectment to recover the same and other lands; said action involving the location of what was known as the Calve tract and consequently the title of said Hood and McKay and also that of Nicholson as aforesaid; which action, after trial in said circuit court, was removed by successive appeals into the St. Louis court of appeals and to the supreme court of Missouri; and was finally decided there in June, 1883, but the question involved concerning the title to said lands being as to the validity of the location known as the Calve tract, being survey 1583, was further contested by said Farish and others and was never finally settled until July 30, 1888, when by a decision of the commissioner of the general land office of the United States, at Washington, D. C., the title of said Cook and of Hood and McKay and all others claiming under them was fully confirmed and vindicated and set at rest.

"Plaintiff alleges that during and throughout the pendency of said action of ejectment said Hood and McKay were defendants in interest; and as such were compelled for their own protection to aid and contribute toward carrying on the defense; that they were subjected to more than ten years of annoying, expensive, and vexatious litigation; that their necessary expenditure in and about defending said action was so great as to seriously embarrass them financially, and they became for the time unable to meet the accruing interest upon the Primrose notes aforesaid; that said David Nicholson and Hood and McKay had the utmost confidence in the ultimate success of the defense in said suit and the maintenance of their title, and such being the status in the year 1877, as aforesaid, and in the month of October thereof, the said Hood and McKay entered into a contract and agreement with said David Nicholson, by the terms of which the said Hood and McKay executed to one Peter Nicholson a third deed of trust upon said land to secure to said David Nicholson the notes of Hood and McKay for the sum of $ 3,000, said Hood and McKay giving to said David Nicholson their notes for said amount. And thereupon, the said David Nicholson agreed with said Hood and McKay, in consideration of said notes, to pay the interest upon the Primrose notes until the end of the litigation which involved the title to said land. Said David Nicholson was further induced to enter into said contract by reason of the fact that said...