Bryan v. McCaskill
| Decision Date | 22 November 1920 |
| Citation | 225 S.W. 682,284 Mo. 583 |
| Parties | JOHN E. BRYAN et ux. v. A. G. McCASKILL, GEORGE A. BURR, et al.; ARCHILUS E. ROBERTSON et ux., Appellants |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court. -- Hon. Frank Kelly, Judge.
Reversed and remanded (with directions).
Andrew W. Hunt for appellants.
(1) The circuit court erred, after having stated that Robertson and wife had proved the facts pleaded, that such pleading and facts were within the Statute of Frauds (R. S. 1909, sec 2868), because (a) McKinnies, February 8, 1908, paid the $ 600 to Stoddard County for its patent out of the proceeds of the timber on the land, which he had bought from Davis, whose title, although but a shadow, he could not dispute, which $ 600 was had by him through Dunbar, Gant & Wright, for the timber, to whom he had sold it under the contract he had made with Davis, while the action of Bryan and wife v. Gardner and Davis was pending and undetermined in the Stoddard Circuit Court, the last contract (that of February 7, 1908) being but a continuation of the contract of 1906; (b) because Davis fully performed his part of the contract by appearing before the Stoddard Circuit Court October 7, 1908, the day prior to the issuance of the patent, and assigning his claim to the land, which, although but a shadow, connected with the county through its grant to Phelan & Hicks in 1869, and McKinnies fully performed his part of the contract by reconveying the land to Davis, June, 8, 1908; and (c) because a court of equity will not allow that statute to aid in perpetrating a fraud. R. S. 1909, sec. 2869; Rose v. Bates, 12 Mo 30; State ex rel. v. Cruzen, 211 S.W. 880; Witte v. Storm, 236 Mo. 470; Leahey v. Witte, 123 Mo 207; Phillips v. Jackson, 240 Mo. 310; Butler v. Carpenter, 163 Mo. 597; Erwin v. Holderman, 92 Mo. 333; Condit v. Maxwell, 142 Mo. 266; Wilsett v. Wilsey, 141 Mo. 200; Jones v. Howard, 142 Mo. 117; Darling v. Potts, 118 Mo. 506; Grumley v. Webb, 44 Mo. 444. (2) In view of the facts pleaded by Robertson and wife, McKinnies never owned such interest in the land, excepting its timber, as was vendible on execution against him. R. S. 1909, sec. 2192. (3) Nor was the Sibole judgment of April 23, 1908, a lien on other than the timber. R. S. 1909, secs. 2124, 2125. (4) This suit was instituted July 26, 1911, and Geo. A. Burr bought the interest in the land under execution sale October 6, 1911, and cannot make it available in this suit. Chilton v. Nickey, 261 Mo. 232; Finley v. Bobb, 144 Mo. 403; Romine v. Haag, 178 S.W. 147; Norcum v. D'Oench, 17 Mo. 98. (5) The purchase of land of the value of $ 12,000, at execution sale for $ 75 connotes fraud; and especially is this true when the sale occurred at 9 o'clock in the forenoon. Mangold v. Bacon, 237 Mo. 496; Shoe Co. v. Wyble, 211 Mo. 675; Stephenson v. Kilpatrick, 166 Mo. 262; Stoffel v. Schroeder, 62 Mo. 147; Vail v. Jacobs, 62 Mo. 130; Holdsworth v. Shannon, 113 Mo. 508; Goode v. Comfort, 39 Mo. 313.
Henson & Woody for respondents.
(1) All of the parties to this controversy were parties defendant in the case of Bryan v. McCaskill, 175 S.W. 961. They presented their several titles to the court and the court passed upon them deciding that Burr had the title. That decision is a final determination of the matters in issue here. When the Bryans disclaimed title, the trial court should have rendered judgment in favor of Geo. A. Burr. Bryan v. McCaskill, 175 S.W. 961; Keaton v. Jorndt, 259 Mo. 179; Griffin v. Nichols, 224 Mo. 291; Emmert v. Aldridge, 231 Mo. 124; Armor v. Frey, 253 Mo. 447; Stone v. Railroad, 261 Mo. 61; Toler v. Edwards, 249 Mo. 161. (2) Plaintiffs are not entitled to recover on the theory that a trust existed between McKinnies and Davis, and that McKinnies held the title in trust for Davis, for the following reasons: (a) Because the trust sought to be established, if any existed, is an express trust and is void because not manifested or proven by a written instrument, or instruments. R. S. 1909, sec. 2868; Stevens v. Fitzpatrick, 218 Mo. 708; Dexter v. McDonald, 196 Mo. 373; Heil v. Heil, 184 Mo. 665; Hunter v. Biggs, 254 Mo. 28; Wolfskill v. Wells, 154 Mo.App. 302; Stevenson v. Haynes, 220 Mo. 199; Patterson v. Patterson, 200 Mo. 335; Hillman v. Allen, 145 Mo. 638; Shelton v. Harrison, 184 Mo.App. 417. (b) Because even if it be, as contended, that the trust sought to be established is a constructive trust, still plaintiffs cannot recover for they have failed to prove the same by such clear, strong, unequivocal and positive proof as to leave no doubt in the mind of the chancellor that such a trust was intended by the parties. And this is especially true in view of the fact that no part of the purchase price was paid with the money of Davis, but was all paid out of the money of McKinnies. Chapin v. Cherry, 243 Mo. 375; Watson v. Payne, 143 Mo.App. 726; Brinkerhoff v. Juden, 255 Mo. 698; Derry v. Fielder, 216 Mo. 176; Curd v. Brown, 148 Mo. 82; Aeby v. Aeby, 192 S.W. 97; Shelton v. Harrison, 184 Mo.App. 418; Ogdon v. Auer, 184 S.W. 72; Williams v. City of Hayti, 184 S.W. 473; Seaman v. Seaman, 181 S.W. 24; Brooks v. Roberts, 195 S.W. 1021; Dowd v. Bond, 199 S.W. 956; Raymond v. Love, 180 S.W. 1058. (c) Because, so far as this record discloses, Burr, ignorant of any trust, if in fact there was one, paid his money for this land at a public sale and it would be inequitable to inforce said alleged trust against him. Derry v. Fielder, 216 Mo. 176. (d) Upon this record, Burr was a purchaser without notice and he should be protected. Davis, even if he had any rights in this land, equitable or otherwise, permitted McKinnies to remain in possession and hold himself out to the word as the true owner, and the Robertsons, holding under him, should not now, in view of the fact that Burr was a purchaser without notice, be permitted to recover. Grove v. Robards, 36 Mo. 523; White v. Storm, 236 Mo. 470; Dexter v. McDonald, 196 Mo. 373. (e) Because the testimony conclusively shows, and it is conceded by all parties, that Stoddard County owned the land, and when McKinnies purchased from the county, he acquired title both to the land and the timber. If he did agree to convey the land to Davis for the timber, and a trust relation was created between the parties, it was without consideration, voluntary and incomplete, and a court of equity will not aid in its enforcement. Harding v. Trust Co., 207 S.W. 68; Brannock v. Magoon, 141 Mo.App. 316; Taylor v. Welch, 168 Mo.App. 223; Watson v. Payne, 143 Mo.App. 72. (3) Considering the physical condition of the land at the time, the fact that it had practically no market value without the timber, the fact that the McKinnies title was considered worthless, and the absence of fraud on the part of the purchaser, the price paid at the sale by the sheriff was not so grossly inadequate as to render the sale void on that account. Phillips v. Stewart, 59 Mo. 491; Knoop v. Kelsey, 121 Mo. 646; Kearney v. Bockler, 143 Mo. 60; Briant v. Jackson, 99 Mo. 585; Daugherty v. Gangloff, 239 Mo. 649; Boyd v. Wiley, 124 U.S. 98, 31 L.Ed. 369.
BROWN, C. Ragland and Small, CC., concur.
In Banc
On July 26, 1911, Bryan and wife filed their petition in the Stoddard Circuit Court for an adjudication of title to the north half and southeast quarter of Section 10 in Township 28 of Range 11 in said county, against A. G. McCaskill, Achilus E. Robertson and Florence B. Robertson his wife, George A. Burr, R. E. L. Johnson, Mary E. Holmes, and several others who have disappeared from the record, in which plaintiffs claimed title in fee by the entirety to the 480 acres, and charged that the defendants claimed some title or interest therein. Robertson and wife on September 29, 1911, answered, claiming an estate in fee by the entirety in the north half of the section, and on October 22, 1911, Holmes answered claiming the north half of the southeast quarter in fee simple. Johnson and Burr answered jointly on the same day, claiming a like title in the south half of the said quarter, and Burr answered at the same time claiming the north half of the section by fee simple title. This, according to the testimony of defendant, Burr was a friendly suit.
The cause was tried in said court on December 7, 1911, resulting in a judgment for the plaintiff declaring and quieting his title to the entire tract. From this an appeal was taken by the answering defendants Burr, Johnson and the Robertsons to this court, where the judgment of the Circuit Court was, on March 2, 1915, reversed, and the cause remanded to the Stoddard County Circuit Court "with directions to the trial court to set aside the judgment rendered in favor of plaintiffs, to grant defendants a new trial, and to proceed with the cause thereafter in accordance with the views heretofore expressed and as modified." The title of defendants was deraigned through a decree of the St. Louis Circuit Court of April 13, 1888, in the case of Charles P. Chouteau v. Cairo & Fulton Railroad Company, Henry H. Bedford and others, which the plaintiffs desired an opportunity to impeach for want of jurisdiction of the subject-matter. This court gave them an opportunity to do so, if they could, in the court to which the cause was remanded. It turned out that the infirmity they suspected did not exist, so that the judgment for appellants stood unaffected in that respect.
Up to this time no issue had been made between the several defendants, but all had apparently joined hands in the circuit court as well as in this court to defeat the plaintiffs.
Upon the return of the case to the Stoddard Circuit Court the Robertsons filed an amended answer which, after denying the title of plaintiffs, admitting their own claim of title and...
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