Campbell v. Campbell

• Citation: 20 S.W.2d 655
• Decision Date: 14 October 1929
• Docket Number: No. 27981.,27981.
• Parties: JOHN D. CAMPBELL v. THOMAS H. CAMPBELL, Appellant.
• Court: United States State Supreme Court of Missouri

20 S.W.2d 655

JOHN D. CAMPBELL v. THOMAS H. CAMPBELL, Appellant.

No. 27981.

Supreme Court of Missouri. Division One.

October 14, 1929.

Appeal from Gentry Circuit Court. — Hon. John M. Dawson, Judge.

AFFIRMED.

E.C. Lockwood for appellant.

(1) The Statute of Frauds is available as a defense, by objection to introduction of evidence, without pleading it. Hillman v. Allen, 145 Mo. 638; Ogden v. Fire Ins. Co., 199 Mo. App. 611; Leesly Bros. v. Fruit Co., 162 Mo. App. 195; Railroad v. Wingerter, 124 Mo. App. 426; Tucker v. Bartle, 85 Mo. 114. (2) To take the case out of the operation of the Statute of Frauds, or the Statute of Uses and Trusts, facts must be pleaded which show a relation of confidence reposed and abused, or some trick or artifice employed, and the fraud must be distinctly alleged and proved. The petition in this case alleges only the breach of an agreement, which plaintiff's evidence shows was verbal. The only allegation of trust and confidence is that plaintiff and defendant were brothers; of fraud, that defendant practiced fraud on the court and plaintiff by procuring partition of the land; and plaintiff now confirms that partition and seeks its fruits. This petition declares upon an express trust. Wolfskill v. Wells, 164 Mo. App. 302; Ferguson v. Robinson, 258 Mo. 113; Hillman v. Allen, 145 Mo. 638; Hammond v. Cadwallader, 29 Mo. 169; Hunter v. Briggs, 254 Mo. 28; Green v. Cates, 73 Mo. 115; Heil v. Heil, 184 Mo. 665; Sanford v. Van Pelt, 314 Mo. 203; Ebert v. Myers, 9 S.W. (2d) 1066; Mugan v. Wheeler, 241 Mo. 376; Crowley v. Crafton, 193 Mo. 421; Notes to 23 A.L.R. 1509 and 1544. (3) One charged with a relation of trust and confidence must occupy toward the other a position of advantage which equity and good conscience require that he use to the advantage and benefit of the other. The petition and proof in this case do not charge or prove that defendant occupied such a position toward plaintiff. 18 C.J. 424; Sinnett v. Sinnett, 201 S.W. 887; Jones v. Thomas, 218 Mo. 508; Bonsal v. Randall, 192 Mo. 525; Crowe v. Peters, 63 Mo. 432; Croft v. Morehead, 316 Mo. 1213. (4) The petition does not allege, nor did the evidence show, any fraud practiced by defendant on plaintiff, prior to or contemporaneous with the execution of the deed in question, and which influenced the plaintiff in making the deed. In the absence of proof of a confidential relation, the burden is on plaintiff to prove that the deed was procured by imposition and fraud practiced upon him by defendant. McKissock v. Groom, 148 Mo. 467; Hatcher v. Hatcher, 139 Mo. 614; Jones v. Thomas, 218 Mo. 508; Studybaker v. Cofield, 159 Mo. 596; Brown v. Foster, 112 Mo. 297; 6 Cyc. 334. (5) The evidence to establish a trust must be clear and unequivocal, and not merely preponderating. These should be no reasonable doubt as to the facts relied upon, and no reasonable ground for hesitancy in the mind of the chancellor. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 278; Jackson v. Wood, 88 Mo. 76; LaRue v. LaRue, 294 S.W. 723. (6) The trial court rejected defendant's offer of proof of previous family relations, and that plaintiff, in executing these deeds, was carrying out what he knew to have been the expressed intention of his mother, and so stated at the time; and refused to permit defendant to cross-examine plaintiff on those matters. Darrier v. Darrier, 58 Mo. 231; Manheimer v. Harrington, 20 Mo. App. 301; Powell v. Railroad, 229 Mo. 272. (7) The letters were not offers of compromise. The first letter disputed plaintiff's accusation that defendant had not treated him right by accepting his deeds to all their mother's property, and then offered a division conditioned on plaintiff procuring help from their father. The other letters were requests for plaintiff to state his claims, if any. If considered as offers of compromise and settlement, they were inadmissible as evidence. Baldanf v. Peyton, 135 Mo. App. 497. The only ground on which plaintiff claims these letters admissible evidence, is flatly repudiated by the courts of appeals. Engel v. Powell, 154 Mo. App. 238; Landsbaum v. Realty Co., 226 S.W. 607.

J.W. Sullinger for respondent.

(1) Appellant has not distinctly alleged in his brief the errors committed by the trial court, as is required by Rule 15. Therefore appellant's brief will not be considered by this court. We invoke the penalty of the rule against it. (2) The petition does not fall within the purview of the Statute of Frauds, and the evidence to sustain it is not required to be in writing. (a) It does not declare upon an express trust. (b) It is alleged in the petition that the deed was made without consideration. This allegation requires an affirmative answer, showing what the consideration was and of what it consisted, and how paid, and as the answer is only a general denial, the allegation of failure of consideration stands confessed. Kinzer v. Kinzer, 130 Mo. 131; Barrett v. Baker, 136 Mo. 521. (3) Where fiduciary relation exists, and deed is executed while that relation exists, the presumption arises that it was the result of undue influence and the burden is upon the party who receives the benefit to show that that was not the case. Studybaker v. Cofield, 159 Mo. 612; Sayer v. Devore, 99 Mo. 437; Garvins v. Williams, 44 Mo. 465; Cadwallader v. West, 48 Mo. 483; McClure v. Lewis, 72 Mo. 314; Martin v. Baker, 135 Mo. 498; Dingman v. Romine, 141 Mo. 466. (4) Mere defects and informalities in the statement of the pleading will be disregarded on appeal, where no demurrer or motion was interposed to it, and the question is presented under exceptions taken to the overruling and objections. Sayer v. Devore, 99 Mo. 437. (5) That a resulting trust may be established by parole evidence, no longer admits of any doubt in this State. Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 385; Johnson v. Quarles, 46 Mo. 423; Hillman v. Allen, 145 Mo. 638; Printing Co. v. Belcher, 127 Mo. App. 139; Philpot v. Penn, 91 Mo. 38. (6) The trial court instead of restricting appellant in his proof of previous family relations, permitted him to go far beyond the border line of what he knew to have been the expressed intention of his mother; and granted the fullest opportunity in the cross-examination of plaintiff. Appellant certainly has no right to complain on this count and the court committed on error.

ATWOOD, P.J.

This is an equity proceeding in three counts. The first count alleges that on or about April 10, 1920, plaintiff and defendant, as the sole surviving children and heirs at law of Hannah Campbell, deceased, were the owners as tenants in common of an undivided one-third interest in three hundred and sixty acres of land in Gentry County, Missouri; that on said date plaintiff conveyed his interest therein to defendant in trust, the particulars of which transaction are set out in said petition; that said conveyance was wrongfully and fraudulently recorded in volume 150 at page 287 of the deed records of Gentry County, Missouri; that thereafter said land was partitioned and one hundred and twenty acres thereof, representing the interest of plaintiff and defendant herein, were set apart to defendant upon his wrongful and fraudulent representation as to his interest therein; and the relief prayed is that plaintiff be adjudged to be the absolute owner in fee of an undivided half interest in said one hundred and twenty acres of land. The second count is to ascertain and determine the title of plaintiff and defendant severally in and to said land. Partition of said land is sought in the third count.

Defendant filed answer admitting blood relationship of the parties hereto, the descent of title, and the interest and tenancy in common of plaintiff and defendant therein on April 10, 1920, as alleged in said petition; also admitting that on or about April 10, 1920, plaintiff conveyed his interest in all of said land to defendant by quitclaim deed recorded in volume 150 at page 287 of the deed records of Gentry County, Missouri; that defendant thereafter instituted a suit for partition in the Circuit Court of said Gentry county, and in due course judgment was entered therein setting off to defendant said one hundred and twenty acres of land; that defendant still holds the legal title thereto, and is in the exclusive possession thereof, claiming all title thereto; and said answer further denies each and every allegation of fact, matter and thing in plaintiff's petition except as in said answer specifically admitted.

Plaintiff filed reply denying each and every allegation of new matter set up as a defense in said answer. No declarations of law were requested or given. From a judgment in favor of plaintiff on each count of the petition defendant has appealed.

Appellant's brief contains neither assignment of errors nor "a statement, in numerical order, of the points relied on with citation of authorities thereunder," as required by Insufficient our Rule 15. Under a heading entitled "Law Points" Brief. the following appears:

"The defenses relied upon by defendant (appellant), to defeat this action, are:

"I.

"On the Pleadings.

"a. That the allegations of the petition fall within the purview of the Statute of Frauds, and the evidence, to sustain them, must be in writing.

"b. That the petition declares upon an express trust, and the alleged agreement to hold in trust for plaintiff, to be valid, must be manifested by a writing.

"c. That the allegation that defendant perpetrated a fraud on plaintiff and on the court, by recording his deed and procuring a decree of partition of the land, is frivolous and duplicitous.

"Of the Evidence.

"a. That plaintiff produced no evidence sufficient to support the allegation of a relation of trust and confidence between him and defendant; or of the abuse by defendant of any trust or confidence reposed by plaintiff in defendant; or that his deed was induced by any trick or artifice...