Baker v. Nall

• Decision Date: 28 February 1875
• Citation: 59 Mo. 265
• Parties: JOSIAH BAKER, Respondent, v. GEORGE Y. NALL, et al., Appellants.
• Court: Missouri Supreme Court

59 Mo. 265

JOSIAH BAKER, Respondent,

v.GEORGE Y. NALL, et al., Appellants.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Clay Circuit Court.

J. E. Merryman, Samuel Hardwick, with Henry Smith, for Appellants, cited in argument, Clark vs. McGuire, 16 Mo., 302; Boal vs. Morgner, 46 Mo., 48; Hill Trustees, 406, 421; Wagn. Stat., 1350, § 1; Roberts vs. Mosely, 51 Mo., 282; Guest vs. Farley, 19 Mo., 147; Tay. Land. Ten., § 705; 2 Greenl. Ev., § 305; Stagg vs. Eureka T. & C. Co., 56 Mo., 217--320; Terrill vs. Boulware, 24 Mo., 254--257; Big. Est., 380, et seq. and 396; Johnson vs. Houston, 47 Mo., 227-231.)

J. W. Jenkins, with James E. Lincoln, for Respondent, cited in argument, Walker vs. Harper, 33 Mo., 592; Parker vs. Raymond, 14 Mo., 535; 1 Wash. Real Prop., 377; 2 Id., 206, 209; Jenkins vs. DeWatts, 7 Johns., 157; Jackson vs. Scissom, 3 Johns., 498; Layohare vs. Dobbin, 3 Johns., 223; Jackson vs. Waller, 7 Cow., 637; Thompson vs. Lyon, 33 Mo., 219; Guest vs. Farley, 19 Mo., 147; Roberts vs. Moseley, 51 Mo., 287.

NAPTON, Judge, delivered the opinion of the court.

This is an action of ejectment, to recover 160 acres of land in Clay county.

The petition and answer are in the usual form, except that the answer, after denying all the allegations of the petition, sets up as a defense, that one Lloyd R. Leach executed a deed conveying the land to plaintiff as trustee for his wife and her children, and that plaintiff's wife is dead, and that the defendants, who married two daughters of plaintiff, are in fact the rightful owners of 2-3 of this land.

The facts in the case seem to be undisputed. It appears that in 1843, Thomas Turner, of Madison county, Kentucky, made a will, devising two small tracts of land to two trustees, named Leavitt and Turner, in trust for the use and benefit of his daughter Sarah Ann Baker, wife of the plaintiff in this case. In 1844, Turner made a deed, having the same object in view, in which he conveyed to these same trustees the same land named in his will, in trust for the use of Sarah and her children, providing in this deed that she be permitted, in conjunction with her husband, to occupy and use this land.

After the death of Turner, an act of the legislature of Kentucky was passed, authorizing the Circuit Court of Madison county to take cognizance of a proceeding in chancery, looking to a sale of this land in Kentucky, and a re-investment of the proceeds in Missouri land; and a decree was accordingly procured, substituting Baker, the husband, in lieu of the original trustees, and authorizing him to sell the Kentucky lands at a price below which he was not allowed to sell, and to invest the money in Missouri, subject to the same trusts.

This was done regularly, and everything done by Baker was sanctioned by the court, and the 160 acres now in dispute were bought, and the deed was made to Baker as “trustee for his wife and her children.”

It seems that after the death of Baker's wife, he rented the land in controversy, for five years to the defendant Nall, who had married his daughter, and that the defendant Russell, intermarried with the other daughter in 1865, and lived with Nall. It further appears, from the statement of Nall, that he was not aware, when he rented said land, of the interest of his wife; and he relies on this ignorance as an answer to the position, that a tenant cannot dispute the title of his lessor.

There were three children of plaintiff and Sarah Ann, his wife, two of whom are defendants with their husbands; and the plaintiff has bought the interest of the other child, who was a son.

The court declared the law to be as asked by plaintiff, which was:

1. “That the defendant, Nall, having gone into possession of the premises in controversy, as the tenant of plaintiff, is estopped from denying the plaintiff's title.”

2. “That under the pleadings and evidence, the plaintiffs are entitled to recover.”

3. “That the court cannot in this action undertake to settle the respective rights of the plaintiff, as trustee, and the beneficiaries of the trust estate.”

4. “That the plaintiff is entitled to recover the possession of the wife's share of the real estate in controversy, as tenant by the courtesy.”

The defendants asked for the following instructions:

“That Lloyd Leach and wife conveyed the property to Josiah Baker in trust and for the use and benefit of Sarah Ann, his wife, and her children, and said Sarah Ann is dead, leaving Thomas her son, and Elizabeth Nall, wife of defendant, and Rebecca Russell, wife of Christopher Russell; that Russell intermarried with Rebecca in 1865; that Nall intermarried with Elizabeth in 1866, and that about two months thereafter, the defendant Nall, without any knowledge of said title and of the interest of his said wife, and by mistake of her rights, made a contract by which he rented the premises from plaintiff; and the plaintiff has since purchased the interest of his son Thomas. Therefore, the court declares that plaintiff is entitled to one undivided third of the premises, and defendants to the remaining two-thirds, and judgment is entered accordingly.”

This instruction the court declined to give, and the judgment of the court was as follows:

“Now at this day come the parties aforesaid, and the court being fully advised, etc., finds that the plaintiff is entitled to the possession of the premises claimed,” etc.

This case presents several points, involving questions of importance and difficulty, both as to the rules of pleading and the merits.

The conveyance to Baker, does not fall within the rule established in Mosely vs. Roberts (51 Mo., 285). There is no doubt, this was an executed trust, since nothing was to be done on his part to complete his obligations as trustee. Still it was a trust, not a use executed by the statute. The use was not merely for the wife, but the children. Where a trust is rendered useless, as in the case of a stranger being made trustee, to protect the wife's interest from her husband, and and the wife dies or the husband dies, the trust is discharged and the legal title passes to the cestuis qui trust. (Mosely vs. Roberts, 51 Mo., 285.)

But in this case, the trust is to the father and husband, for the use of the wife and children. This trust is not discharged by the death of the wife, the trustee still living.

The children, after the death of the wife, had an undoubted equitable right to the rents and profits of the estate; and the plaintiff had no right to rent the farm to his son-in-law for $500, unless the rent was returned to his two daughters. But the son seems then to have been a minor, and as trustee, the plaintiff might lease the land; but for any misappropriation of the rent, could have been held liable in a suitable proceeding.

If the construction of this deed is to be to hold the wife and children as tenants in...