Bobb v. Bobb
| Decision Date | 07 June 1887 |
| Citation | 4 S.W. 511,89 Mo. 411 |
| Parties | Bobb v. Bobb et al |
| Court | Missouri Supreme Court |
Cross-Appeals from St. Louis Court of Appeals.
Affirmed.
Jeff. Chandler for appellant, Charles Bobb.
(1) It is an inflexible rule of equity pleadings that the equitable title upon which plaintiff claims must be set out with certainty, and recovery must be had on the title so set out. Story's Eq. Pls., secs. 241, 258; Ibid. 27, 28; Crockett v. Lee, 7 Wheat. 527; Railroad v Stewart, 4 C. E. Green, 71; Jones v. Louderman, 37 Mo. 290. In this case, however, there is a total departure in the judgment from the cause of action stated in the petition. Plaintiff cannot declare upon one cause of action and recover upon another. Dougherty v. Matthews, 35 Mo. 520; Jones v. Louderman, 37 Mo. 290; Harris v. Railroad, 39 Mo. 309, 310; Merle v. Hascall, 10 Mo. 406. Neither can plaintiff contradict the allegations of his petition. He cannot now be heard to say in contradiction of his petition that no money was in fact to be paid. 34 Mo. 246; 32 Mo. 203. (2) The doctrine advanced by the other side that a deed cannot be shown to have been given for no consideration is not correct. Haigh v. Kage, 7 Ch. [L. R.] 469; Davis v. Otty, 35 Beav. 208; Kelly v. Johnson, 28 Mo. 449. (3) If it be true that Charles Bobb is estopped from showing that there was no consideration for the deed of 1843, for the purpose of defeating the deed, he may show in this very case that it has not been paid and may recover it in this action. Besides the decree is erroneous in not allowing to the vendor in his account as trustee the purchase price of said land with interest thereon at the same rate which plaintiff regards as so equitable in his behalf. Lenman v. Whitney, 4 Rus. 422; Chilton v. Braiden, 2 Black, 458; Manly v. Slason, 21 Vt. 271; Garson v Green, 1 John. Ch. 308; Cordova v. Hood, 17 Wall. 5; Mackuth v. Symmons, 15 Ves. 329; Lewis v. Harkin, 23 Wall. 125. (4) Plaintiff cannot adopt the sale of the property by Charles Bobb to Hannah Letcher, and by Hannah Letcher to Charles Bobb, and hold Charles Bobb responsible as a trustee by purchase, without conceding to said Charles Bobb whatever equities spring out of the transaction in his favor. Brooms Legal Maxims, 681, top, 522; Lincoln v. Wright, 4 De G. & J. 22; Smith v. Brisby, 15 Mo. 392. The vendor of an equitable title is entitled to his lien for the purchase price. Bledsoe v. Gaines, 30 Mo. 451; Edmondston v. Philips, 73 Mo. 60; Real Estate, etc., v. Collonious, 63 Mo. 295. A vendor's lien exists against subsequent purchasers and incumbrances when they advance no new consideration or have notice. Hallock v. Smith, 3 Barb. 267. (5) If the estate was derived from Charles Bobb, then he is not compelled to account until the heirs become of age. Since 1835, the law in this state has exempted parents, as natural guardians, from accounting for the estates of their children when derived from them. Rev. Code, 1835, 294; R. S., 1845, --; 1 Wag. Stat., 1872, p. 672, sec. 2. (6) Parol evidence to show the origin of the estate is admissible. Fontaine v. Boatmen's, 57 Mo. 552; Hollocher v. Hollocher, 62 Mo. 267.
M. Kinealy also for appellants, George L. Bobb, Charles Bobb and Cora B. Taylor.
(1) A new accounting should be ordered without compound interest. In taking the account annual balances should have been struck. In re Cruce, 81 Mo. 677. (2) Where children have large private fortunes an allowance will be made to the father for their maintenance and education certainly when the father's means are limited. Matter of Marx, 5 Abbott's New Cases [N. Y.] 224; Harring v. Coles, 2 Bradf. 349, 353; Matter of Kane, 2 Barb. Ch. 375, 377, 380; In re Burke, 4 Sandf. Ch. 617; Jervoise v. Silk, Cooper's Ch. 52; Maberly v. Turton, 14 Ves. 499; Cavendish v. Mercer, 5 Ves. 195n. And such an allowance will be made to reimburse the father for past maintenance, etc. See previous cases, and also Reeves v. Brymer, 6 Ves, Jr. 425; Sherwood v. Smith, Id. 454; Sisson v. Shaw, 9 Ves. 285; Ex Parte Darlington, 1 Ball and B. 240, side page. (3) The decree of the St. Louis land court is void against George L. Bobb and Cora B. Taylor. Creath v. Smith, 20 Mo. 113; Shields v. Powers, 29 Mo. 315; Mathew v. Sprague, 1 Curtis, 457; Chandler v. McKinney, 6 Mich. 217; Car v. Fielden, 18 Ill. 77; Peachy v. Harrison, 1 Ld. Raym. 252. (4) Mr. Bobb's children are all volunteers and it is settled law that a volunteer cannot seek the reformation of a deed unless the donor intimates his desire that such relief be decreed. Adair v. McDonald, 42 Ga. 506. (5) In examining the claim preferred by George L. Bobb and Cora B. Taylor it is to be remembered that courts of equity are ever eager to seize on any pretext by which they can secure equality among children and to preserve the younger from the greed or rapacity of their elder brethren. Phillips v. Phillips, 50 Mo. 608; Halfpenny v. Udall, 9 Mod. 56. (6) The statutory requirement that a trust must be created by a written instrument does not apply to such a case since trusts ex maleficio are either expressly or tacitly excepted from its provisions. Pomeroy Spec. Perform. 206; Laing v. McKee, 13 Mich. 124; Coyle v. Davis, 20 Wis. 593; Arnold v. Cord, 16 Ind. 177; Cameron v. Waid, 8 Ga. 245; Hodges v. Howard, 5 R. I. 149.
Hitchcock, Madill & Finkelnburg for John H. Bobb and Charles L. Bobb's representatives, respondents.
(1) Charles Bobb was not entitled to be credited in his account as trustee with any sum whatever, as being the consideration stated in his deed of April, 1843, to Hannah Letcher, nor should this court reverse or modify the judgment below because such credit was not given. This claim was for the first time set up or heard of in the appellate court, and for this reason cannot be allowed. Barnes v. McMullins, 78 Mo. 276. The claim, even if it had been raised in time, is without merit. (2) The cause of action set out in plaintiff's petition was not based exclusively on the deed from Charles Bobb to Hannah Letcher, dated April 18, 1843, nor is it true that the deed in trust from Hannah Letcher to Charles Bobb, dated January 23, 1845, appeared in the case only as a matter of evidence. The record itself establishes the contrary. (3) All pleadings filed prior to the second amended one, and the answer thereto were abandoned and cut no figure in the case. Pickering v. Miss., etc., 47 Mo. 460; Township Board v. Hackman, 48 Mo. 246. (4) Where one deliberately and in the absence of deception and fraud, conveys his property, acknowledging the receipt of a consideration in the instrument of conveyance, parol evidence is inadmissible to show a want of consideration to defeat the deed or to raise a resulting use in favor of the grantor. Grout v. Townsend, 2 Hill, 554; 16 Wend. 430; 36 N.H. 86; 29 Me. 410; 16 Conn. 383; 30 Ill. 511. (5) Hannah Letcher was not only competent to, but did, by her deed of January 23, 1845, convey back said lands (except those already conveyed), to Charles Bobb, and could and did impress upon them, by the latter deed, the express trust therein declared, and for the enforcement of which this suit is brought. McConnell v. Brayner, 63 Mo. 461; Hollocher v. Hollocher, 62 Mo. 267; Fountaine v. Boatman's Savings Bank, 57 Mo. 561; Henderson v. Henderson, 13 Mo. 153. (6) The appellant is estopped by the decree, in the suit brought by him in the St. Louis land court in 1854. Spradling v. Conway, 51 Mo. 54; Union v. Traube, 59 Mo. 362. Even without reference to the decree, the petition filed in said suit was a solemn admission of the facts therein stated, and was competent evidence in another suit. Turner v. Baker, 64 Mo. 218, 245. (7) The court below did not err in refusing to reform the trust deed of January 23, 1845, so as to let in the appellants, Cora and George L. Bobb, as beneficiaries under the terms of said deed. Tesson v. Ins. Co., 40 Mo. 36; Lyman v. Ins. Co., 17 Johns, 373; Nevins v. Dunlap, 33 N.Y. 680; 1 Perry on Trusts, sec. 104; Ellison v. Ellison, 1 White & Tudor Lead. Cases [4 Ed.] 382, 389. (8) The report of a referee stands as the verdict of a jury. Where there is any evidence to sustain it, it is to be presumed that the whole evidence was properly weighed and the requisite effect given to it. Gimbel v. Pignew, 62 Mo. 242; Woodrow v. Younger, 61 Mo. 395; Franz v. Dietrich, 49 Mo. 95; Western Boatiny Association v. Kribben, 48 Mo. 37. (9) As a general rule the father must, if he can, maintain his infant children whatever their circumstances may be, and no allowance will be made him for that purpose, out of their property while his own means are adequate for their support. Schouler Dom. Rel. [2 Ed.] sec. 322; 2 Kent Com. [12 Ed.] sec. 191; Otte v. Becton, 55 Mo. 101; Gillett v. Camp, 27 Mo. 541; St. Ferd. Acad. v. Bobb, 52 Mo. 357. (10) The trustee was rightly charged, by the final decree, with the costs in this case. R. S., 1879, sec. 990; Dupont v. McLaran, 61 Mo. 502; Hawkins v. Nowland, 53 Mo. 329; Walton v. Walton, 19 Mo. 667. (11) No such rule of law exists as alleged, under which courts of equity will reform a voluntary conveyance, on the ground of mistake, upon proof less clear or convincing than is required in case of any other conveyance. Equity grants relief on the ground of mistake, in order to carry out the real intent of the parties; and the proof of that intent, and that it was or will be defeated through a mistake, is not affected by the question of consideration. The courts below rightly refused to change the provisions and effect of the deed of January 23, 1845, for the benefit of this appellant on the ground of mistake set up in Charles Bobb's answer.
On April 18, 1843, the defendant, Charles Bobb, conveyed to Miss Hannah Letcher nine parcels of land in the city of...
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