Barnett v. Smart

• Decision Date: 12 November 1900
• Citation: 59 S.W. 235,158 Mo. 167
• Parties: BARNETT v. SMART.
• Court: Missouri Supreme Court

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 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 he attempted to do so by executing the deed to Isaac Smart as above recited"; that Mrs. Maxwell died in 1891; that the land had not been sold as the Stephens deed required; that plaintiff had received no part of the proceeds; that he and Mary Cassell were each entitled to one-eighth of the proceeds of the land when the same should be sold. Then followed the conclusions of law which the court drew from those facts, which were to the effect that as Mrs. Maxwell was entitled to possession during her life, and the land was to be sold and equally divided between her children after her death, the statute of limitations did not begin to run against plaintiff during her life, but that the plaintiff could not maintain that suit, because he had "a plain and adequate remedy at law, by bringing the action of ejectment for the possession of the real estate involved, through the intervention of the trustee appointed by this court." In conformity, apparently, to the suggestion of the court in that memorandum, D. C. Barnett, as substituted trustee, has brought this suit. While there was no direct evidence that the purchase money received by the trustee, Woodson, from Isaac Smart went to purchase the Kansas City property, the circumstances almost unequivocally indicate that such was the fact. The deed to Smart bears date November 16, 1896, but it is probable its actual delivery was some days later, owing, possibly, to the fact that all of Mrs. Maxwell's children were then of full age and had moved away; but, at all events, whatsoever the cause, the deed was not filed for record until December 19th, while the deed to Woodson as trustee of the Kansas City property was acknowledged December 20, and recorded December 25, 1865. There was evidence tending to show that this Cass county land was the only available means the trustee had, and there was no evidence to the contrary. And, besides, the amount paid for the Kansas City property was about the amount of cash received by Woodson from Smart on that sale; the evidence showing that, besides the real-estate agent's commissions to be deducted from the $3,150 part of the consideration, $800 was to be a deferred payment. So that if the trial court found, as a matter of fact, that the proceeds of the sale to Isaac Smart went to purchase the Kansas City property, there is nothing to shake the foundation of that finding. The defendant in this suit is the grantor...