Barnard v. Keathley

• Decision Date: 19 July 1910
• Citation: 130 S.W. 306,230 Mo. 209
• Parties: CHARLOTTE BARNARD et al. v. JAMES T. KEATHLEY, Appellant
• Court: Missouri Supreme Court

130 S.W. 306

230 Mo. 209

CHARLOTTE BARNARD et al. v. JAMES T. KEATHLEY, Appellant

Supreme Court of Missouri, Second Division

July 19, 1910

Appeal from Ralls Circuit Court. -- Hon. David H. Eby, Judge.

Affirmed.

James O. Allison and David Wallace for appellant.

(1) The judgment for partition is contrary to the terms of the will and the intention of the testator as expressed therein. It is true that in the second paragraph the will uses the word "desire" in referring to the sale of this land by his executors, but in the third clause it says in substance that the sale of this land is "directed" to be made by his executors. Taking the whole will together it means that the real estate named in the petition is directed to be sold by the executors. It will be noticed that the will nowhere vests the title of the land in the plaintiffs, the heirs or legatees of Roland Keathley. It is a fair construction that the title was vested in the executors with power of sale. They took the land coupled with an interest. Partition cannot be made in contravention of a will and contrary to the testator's intentions expressed therein. R. S. 1899, sec. 4383; Ex parte Cubbage, 62 Mo. 364; Stevens v. De La Vaulx, 166 Mo. 20; Sikemeier v Galvin, 124 Mo. 367; Lilly v. Menke, 126 Mo 211; Stevens v. Lorwill, 110 Mo.App. 151; Mead v. Jennings, 46 Mo. 91. (2) The court erred in rendering judgment for partition, because the land was in exclusive adverse possession of the defendant. The pleadings and evidence clearly show that the plaintiffs were not in actual or constructive possession. Forder v. Davis, 39 Mo 108; Shaw v. Gregoire, 41 Mo. 407; Hutson v. Hutson, 139 Mo. 229; Haeussler v. Iron Co., 110 Mo. 188; Colven v. Hauenstein, 110 Mo. 575; Estes v. Nell, 140 Mo. 639; Womack v. Whitmore, 58 Mo. 448; Lambert v. Blumenthal, 26 Mo. 471; Rozier v. Johnson, 35 Mo. 326. (3) Inadequacy of price is not sufficient ground to set aside a sale. Wagner v. Phillips, 51 Mo. 117; Brient v. Jackson, 99 Mo. 585; Gordon v. O'Neil, 96 Mo. 350; Walters v. Hermann, 99 Mo. 529. This is an auction sale. There was a large number of people present able to buy, and a number of bidders, and the land is presumed to have sold for its market value. The price the land really sold for at the well-advertised sale, with a large number of bidders present, should be taken as the best evidence of the market value, and should outweigh the opinions of witnesses given years afterward when the price of land had advanced. (4) The charge of fraud must be supported by satisfactory evidence, and not left to rest upon mere surmise and conjecture. Lowmax v. Railroad, 119 Mo. 192. Fraud must be proved; it cannot stand upon a fog of suspicion, or be based upon mere presumption alone. Kilpatrick v. Wiley, 197 Mo. 123. The burden of proof of fraud in the sale of land is on the party attacking the sale, and the evidence offered to establish the fraud must be clear and convincing. Kaiser v. Gammon, 95 Mo. 217. Fraud is not to be presumed because the purchaser afterward sold to the administrator. Templeton v. Wolf, 19 Mo. 101. The validity of the sale does not depend upon the application of the purchase money. Hodges v. Black, 8 Mo.App. 389. (5) The court erred because it assumed jurisdiction and authority to set aside the sale and partition of the land. There can be no doubt that the sale was regular and valid up to the time of making the deed. The main ground of complaint urged by respondents is that the purchaser did not pay the purchase money. This did not invalidate the sale. The payment of the purchase money could have been enforced. The executor had a lien upon the land sold for the purchase money. After the land was re-sold to the executor by the purchaser the executor should have reported the money to the probate court and made distribution. He could have been proceeded against in the probate court, and could have been cited to appear and make settlement. He could have been sued on his bond if necessary. A court of equity could have compelled the executor to complete his trust by accounting for the money and making final settlement in accordance with the terms of the will. It was not necessary to resort to partition proceedings and it could not be done without violating the terms of the will. Mead v. Jennings, 46 Mo. 91; Mastin v. Barnard, 33 Ga. 520; William v. Veach, 17 Ohio 171.

C. T. Hays and Ben E. Hulse for respondents.

(1) The will does not devise the land in controversy to the executor to sell and thereby pass to him the interest in it; but desires that the executor shall sell the land, limiting the time for selling to one year after the death of the testator, and not leaving it to the executor's discretion. The devise constituted, on the testator's death, an immediate conversion of the land into money, and conferred upon the executor a trust power to sell within a time limited -- a power not coupled with an interest. State ex rel. v. Walker, 88 Mo. 284; Compton v. McMahan, 19 Mo.App. 494; Llewellyn v. Llewellyn, 122 Mo.App. 467; Morris v. Stephenson, 128 Mo.App. 338. Real estate upon the death of a testator passes to his heirs, subject to the power of disposal conferred upon the executor by the will; and where the will directs that the lands shall be sold by the executor, he is given nothing but the naked power to sell, and has no interest in the land. Emmons v. Gordon, 140 Mo. 490; Francisco v. Wingfield, 161 Mo. 542; Wisker v. Rische, 167 Mo. 522. (2) Having exercised the power of sale, though fraudulently, the power is exhausted and cannot be again exercised. So that unless the circuit court had jurisdiction herein, respondents must perforce accept the sale. Steel to use v. Farber, 37 Mo. 77; Schanewerk v. Hoberecht, 117 Mo. 22. (3) Appellant contends that respondents should have ratified the sale and have proceeded against the executor through the probate court and compelled the filing of his belated accounting for the elusive, doubtful and inadequate proceeds of the pretended sale. But we contend that if the sale was fraudulent, respondents were not compelled to adopt that course. A court of equity will, in the exercise of its jurisdiction over trusts and trustees, which has obtained ever since the establishment of courts of chancery, examine into the conduct of this trustee in relation to the trust fund in his charge. Such court will not compel these beneficiaries to lose their legacies, or the major portion thereof, under the will, if the donee of the trust power has fraudulently exercised the power, but will declare him to hold the title in trust for the persons equitably entitled to the proceeds; and, having jurisdiction of the res and of the persons, will not stop there, but will adjust all equities and make partition, notwithstanding defendant trustee is in possession. Thornton v. Irwin, 43 Mo. 165; Dameron v. Jameson, 71 Mo. 97; Welch v. Anderson, 28 Mo. 299; Reed v. Robertson, 45 Mo. 580; Holloway v. Holloway, 97 Mo. 628; Hamilton v. Armstrong, 120 Mo. 597; James v. Groff, 157 Mo. 402; Roan v. Winn, 93 Mo. 503; Donaldson v. Allen, 213 Mo. 299. (4) It is true that suits in partition brought under the statute, and not equitable in their nature, cannot be maintained when the defendant is in adverse possession of the land involved, and plaintiffs in such cases will be remitted to ejectment. The cases cited on this point by appellant are all cases at law, brought under the statute. That rule, however, does not apply to cases such as this, where the object of the suit is the determination of questions properly cognizable by courts of equity and not susceptible of adequate relief by courts of law. Dameron v. Jameson, 71 Mo. 97. Not having the legal title to the land, plaintiffs could not sue in ejectment for the land or recover at law for rents and profits, and James T. Keathley, being trustee, must account for rents and profits in order that complete justice may be done and a multiplicity of suits avoided. Bent v. Priest, 86 Mo. 482; Landis v. Saxton, 89 Mo. 375; 2 Woerner's Am. Law of Ad. (2 Ed.), sec. 487. (5) It may be conceded that partition cannot be made in contravention of a will. But we submit that that limitation on the right to partition means only that the court cannot disturb the relative claims of the respective parties named in the will to their distributive shares of the devised land or its proceeds. Spratt v. Lawson, 176 Mo. 182; Sikemeier v. Galvin, 124 Mo. 367. (6) Appellant could not do by indirection that which he could not do directly. He is in the same situation as if he had purchased directly from himself. Shaw v. Shaw, 86 Mo. 594; Thornton v. Irwin, 43 Mo. 162. (7) And even if the sale had been in good faith and for a fair price, it would nevertheless have been voidable. Thornton v. Irwin, 43 Mo. 163.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is a suit in equity by the residuary legatees of Roland Keathley, deceased, to set aside a certain deed made by James T. Keathley, as the executor of the will of Roland Keathley deceased, to certain lands described in the petition lying in Ralls county, Missouri, to his son Henry C. B. Keathley, and a certain deed from the said Henry C. B. Keathley, of the same lands, on the ground that said conveyances were the result of a fraudulent conspiracy between the said James T. Keathley and his said son Henry C. B. Keathley, in fraud of the devisees and legatees of the said Roland Keathley, deceased, and to restore them to the estate of the said Roland Keathley, deceased, and in the second count to have the said land sold and partitioned and the proceeds thereof distributed among the legatees and devisees of the said Roland Keathley, deceased, in accordance with the will of said Roland...