Barnett v. Smart

CourtMissouri Supreme Court
Writing for the CourtValliant
Citation59 S.W. 235,158 Mo. 167
PartiesBARNETT v. SMART.
Decision Date12 November 1900
59 S.W. 235
158 Mo. 167
BARNETT
v.
SMART.
Supreme Court of Missouri, Division No. 1.
November 12, 1900.

TRUSTS — EXECUTION — RES ADJUDICATA — FACTS AND DECISIONS — DISMISSAL — ESTOPPEL.

1. Where one was appointed trustee by an interlocutory decree in a suit in equity at the instance of the complainant, a subsequent dismissal of the bill annulled the appointment.

2. Where a suit in equity was dismissed on the ground that it appeared from the facts found that complainant had an adequate remedy at law, the facts found and the court's conclusions of law thereon were not determinations estopping defendant from asserting otherwise in a subsequent action at law.

3. Where a trust deed provided that on the death of the cestui que trust the land conveyed should be sold, and the property divided among the beneficiary's children, but during the lifetime of the cestui que trust she and the trustor and certain of the children, all of whom were of age, sold the property and invested the proceeds in a house, title being taken by the trustee, as such, for the same use as specified in the original trust deed, and thereafter such property was sold during the lifetime of the cestui que trust, and the children who had not signed the first deed united in the deed of the house, such action on their part was an acquiescence in the original sale, estopping them from asserting any interest in the land against the vendee by reason of their not having joined in the deed executed in violation of the trust.

4. Where plaintiff was only entitled to relief in equity, but his bill was erroneously dismissed on the ground that he had an adequate remedy at law, and he did not appeal from such decree, the decision in equity was conclusive against him, preventing his maintaining an action at law.

Appeal from circuit court, Bates county; James H. Lay, Judge.

Action by D. C. Barnett against Fletcher Smart. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action in ejectment for certain lands in Cass county. The dominant facts gathered from the evidence are as follows: In 1845 the land in suit was conveyed by one Stephens to Samuel H. Woodson in trust, to be possessed and enjoyed by Sinah Maxwell, for her sole and separate use, during her life, and after her death, and the coming of age of her youngest child, to be sold by the trustee, and the proceeds divided equally between her children. Upon the execution of the deed, Sinah Maxwell went into possession, and had the exclusive use of the land until November 16, 1865, when she and five of her children joined the trustee, Woodson, in a deed of general warranty conveying the land in fee to Isaac Smart for the expressed consideration of $3,150. About the same time Smart also acquired by deed the interest of another one of Mrs. Maxwell's children. At this time Mrs. Maxwell had eight children, all of whom were of age. Two of her children, John L. Maxwell and Mary Cassell, did not join in the conveyance to Smart. Immediately after his purchase, Isaac Smart took possession of the land, and remained in possession until October, 1895, when he sold it to his son, the defendant in this case, who has been in possession ever since. Isaac Smart died in 1896. Shortly after the sale to Smart (that is, in December, 1865), the trustee, Woodson, purchased a house and lot in Kansas City, paying $2,000 therefor, and took a deed to himself as trustee, for the same use and purpose as that specified in the Stephens deed; and Mrs. Maxwell moved to Kansas City, and took up her abode in that house. In 1869 Mrs. Maxwell and all her children, including John L. Maxwell and Mary Cassell, joined in a deed conveying the Kansas City property to one Blake for $2,000. In 1881, Woodson, the trustee died. In 1891 Mrs. Maxwell died. In January, 1892, John L. Maxwell brought suit in equity in the circuit court of Cass county against Isaac Smart and Mary Cassell and her husband, Abraham Cassell, the general purpose of which was to have a trustee appointed in the place of Woodson, deceased, to execute the trust which it was alleged the original trustee had died leaving unexecuted. The petition in that case set out the Stephens deed in full, and then the deeds above mentioned to Isaac Smart, stated the death of Woodson in 1881, and of that of Mrs. Maxwell in 1891, and averred that the land had not been sold according to the requirements of the trust deed, and that plaintiff was then entitled to have it sold by a trustee to be appointed by the court, and one-eighth of the proceeds paid to him, and one-eighth to Mary Cassell. The answer of Isaac Smart in that case denied the allegations of the petition, and set up title under his two deeds above mentioned, from Woodson, trustee, and Mrs. Maxwell and her children, and a plea of the statute of limitations. The reply put in issue the affirmative defenses of the answer. By an interlocutory decree in that suit in July, 1892, by consent of parties, D. C. Barnett, the plaintiff in this suit, was appointed trustee in place of S. H. Woodson, deceased. On March 14, 1893, a final decree was entered in that cause in these words: "And now at this day come again the parties plaintiff and defendant, by their respective attorneys, and, this cause coming on regularly

[59 S.W. 236]

for trial, both parties announcing `Ready,' the same is now taken up and submitted to the court; and the court, having heard the pleadings and evidence and argument of counsel, and being fully advised in the premises, does, for the reasons set forth in the court's finding of facts herein filed, dismiss the plaintiff's bill. It is therefore considered and adjudged by the court that the plaintiff take nothing by his said cause, and that said defendants go hence without day, and have and recover of and against said plaintiff their costs and charges herein laid out and expended, and have execution therefor." At the same time the court filed a memorandum of the facts found by it, which were substantially as follows: That immediately on the execution of the Stephens deed Mrs. Maxwell was put in possession of the farm, and occupied it, enjoying the rents and profits, until November 16, 1865, when, all of her children (eight in number) being of age, she and the trustee, Woodson, and five of her children (naming them) joined in the deed above mentioned to Isaac Smart, and that on December 19, 1865, Smart, by deed of that date, acquired the interest of Richard Maxwell, another of her children; that the price paid by Smart was the fair value of the land, and he bought in good faith, believing he was getting a complete title in fee, and went into immediate possession, and has remained so ever since, claiming title; that Woodson died in 1881, "without having executed the trust reposed in him in said deed, and before the time said deed could be fully executed, except as...

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15 practice notes
  • Troll v. City of St. Louis, No. 14834.
    • United States
    • United States State Supreme Court of Missouri
    • 4 Maggio 1914
    ...authorities: Thistle, Trustee of Thistle, v. Buford, 50 Mo. 278; Austin v. Loring, 63 Mo. page 22, and cases cited; Barnett v. Smart, 158 Mo. 167, 59 S. W. 235; Fischer v. Siekmann, 125 Mo. 180, 28 S. W. 435; McClanahan v. West, 100 Mo. 323, 324, 13 S. W. 674; Clyburn v. McLaughlin, 106 Mo.......
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Marzo 1936
    ...that there was no judgment on the merits of the cause of action, and therefore the doctrine of res judicata applies. Barnett v. Smart, 158 Mo. 167; 15 R.C.L., p. 955, sec. 431; 34 C.J., p. 893; 2 Freeman on Judgments (5 Ed.), sec. 724, pp. 1532-1534. (4) The holding of the trial court, (1) ......
  • Central States Life Ins. Co. v. Lewin, No. 34956.
    • United States
    • United States State Supreme Court of Missouri
    • 22 Aprile 1938
    ...v. Pillman, 261 Mo. 359; Kansas City ex rel. Barrett Co. v. Spitcaufsky, 239 S.W. 808; Dillinger v. Kelley, 84 Mo. 561; Barnett v. Smart, 158 Mo. 167. (2) The respondent Lewin is not liable for interest on the principal notes prior to maturity. The unmatured principal notes therefore could ......
  • State ex rel. Green v. Brown et al., No. 21286.
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Settembre 1930
    ...real desire to obtain a decree, whereas the defendants in said suits were anxious to retain the territories in question. Barnett v. Smart, 158 Mo. 167, 59 S.W. 235; Munday v. Knox, ___ Mo. ___, 19 S.W. (2d) 487; Murphy v. Creath, 26 Mo. App. 581. (d) The interest of these relators in said i......
  • Request a trial to view additional results
15 cases
  • Troll v. City of St. Louis, No. 14834.
    • United States
    • United States State Supreme Court of Missouri
    • 4 Maggio 1914
    ...authorities: Thistle, Trustee of Thistle, v. Buford, 50 Mo. 278; Austin v. Loring, 63 Mo. page 22, and cases cited; Barnett v. Smart, 158 Mo. 167, 59 S. W. 235; Fischer v. Siekmann, 125 Mo. 180, 28 S. W. 435; McClanahan v. West, 100 Mo. 323, 324, 13 S. W. 674; Clyburn v. McLaughlin, 106 Mo.......
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Marzo 1936
    ...that there was no judgment on the merits of the cause of action, and therefore the doctrine of res judicata applies. Barnett v. Smart, 158 Mo. 167; 15 R.C.L., p. 955, sec. 431; 34 C.J., p. 893; 2 Freeman on Judgments (5 Ed.), sec. 724, pp. 1532-1534. (4) The holding of the trial court, (1) ......
  • Central States Life Ins. Co. v. Lewin, No. 34956.
    • United States
    • United States State Supreme Court of Missouri
    • 22 Aprile 1938
    ...v. Pillman, 261 Mo. 359; Kansas City ex rel. Barrett Co. v. Spitcaufsky, 239 S.W. 808; Dillinger v. Kelley, 84 Mo. 561; Barnett v. Smart, 158 Mo. 167. (2) The respondent Lewin is not liable for interest on the principal notes prior to maturity. The unmatured principal notes therefore could ......
  • State ex rel. Green v. Brown et al., No. 21286.
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Settembre 1930
    ...real desire to obtain a decree, whereas the defendants in said suits were anxious to retain the territories in question. Barnett v. Smart, 158 Mo. 167, 59 S.W. 235; Munday v. Knox, ___ Mo. ___, 19 S.W. (2d) 487; Murphy v. Creath, 26 Mo. App. 581. (d) The interest of these relators in said i......
  • Request a trial to view additional results

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