Cantwell v. Crawley

• Decision Date: 30 March 1905
• Parties: CANTWELL et al. v. CRAWLEY et al., Appellants
• Court: Missouri Supreme Court

86 S.W. 251

188 Mo. 44

CANTWELL et al. v. CRAWLEY et al., Appellants

Supreme Court of Missouri, Second Division

March 30, 1905

Appeal from St. Francois Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

M. R Smith for appellants.

(1) An indefinite trust agreement affecting two distinct tracts of land, founded upon a consideration dependent upon the entire performance of the contract, is not divisible, but is an entire contract and cannot be enforced in equity in piecemeal. Hill v. Coal Co., 119 Mo. 27; 7 Am. and Eng. Ency. Law (2 Ed.), 95; Merriam v. Norman, 9 Heisk. (Tenn.) 269; 1 Beach on Mod. Contracts, sec. 731; More v. Bennett, 40 Cal. 251. The reason seems to be that, as the contract is founded upon a consideration dependent upon the entire performance of the act, if from any cause it is not wholly performed, the casus foederis does not arise, and the law will not make provision for exigencies which the parties have neglected to provide for themselves. Story's Equity Jurisprudence, sec. 470; 7 Am. and Eng Ency. Law (2 Ed.), 97. (2) The so-called trust agreement was declared upon terms and conditions specified in a contract made prior thereto. The instrument is incomplete as to when the trust imposed shall be discharged, as to the consideration upon which it was founded, and as to whether any "rights and interest" had been or were to be acquired in the tracts of land described therein, and as to the purpose of the trust. The contract is within the Statute of Frauds and is executory. Kelly v. Thuey, 143 Mo 436. (a) The answers are sufficient. Hillman v. Allen, 145 Mo. 643. (b) In cases of specific performance: Springer v. Kleinsorge, 83 Mo. 152. (c) As to the trust agreement being executory: 2 Black., Com., 443; McDonald v. Hewett, 15 Johns. (N.Y.) 340; Hill v. Coal Co., supra. The instrument under consideration can only be a declaration of an executory trust. Gaylord v. Lafayette, 115 Ind. 429; Bisph. on Eq. (2 Ed.), 31; Sime v. Howard, 4 Nev. 484; Pitts v. Weakley, 155 Mo. 135. (3) The so-called trust agreement was made in October, 1888. Suit was brought to discharge the trust December 12, 1899, more than eleven years after the instrument was made, and more than ten years after it was filed, and more than eleven years after Crawley got title of Williams, and almost nine years after the Shannons got title of Crawley, and after eight years of actual possession by the Shannons. Is this, or not, laches? Bliss v. Prichard, 67 Mo. 187; Hatcher v. Hatcher, 139 Mo. 626; Kroening v. Goehri, 112 Mo. 641; Kelley v. Hurt, 74 Mo. 565; Brown v. Massey, 138 Mo. 532; Davis v. Petty, 147 Mo. 385. (a) Plaintiffs never sought possession of land. Taylor v. Von Schrader, 107 Mo. 228. (b) The question of consideration is in doubt. Davis v. Petty, 147 Mo. 383. (c) When Crawley sold the land and gave a warranty deed and received $ 1,000 therefor, and plaintiffs received notice of such sale, the day for action had arrived. Mastin v. Grimes, 88 Mo. 488; Frink v. Thomas, 12 L.R.A. 243; In re Ferguson's Estate, 124 Mo. 584. (d) Without specializing the facts and circumstances, the relative position of the parties have changed to the prejudice of defendants. Newman v. Newman, 152 Mo. 415; Frink v. Thomas, 12 L.R.A. 239. (4) The trust agreement was never intended by the parties to it to affect any interests except interests acquired by Crawley for the three, in options; they were acting jointly in taking options and prospecting for lead. (5) The strict execution of option contracts, the law does not favor, especially unless diligence is used. Litz v. Goosling, 21 L.R.A. 127; Smith v. Wilson, 160 Mo. 165.

Merrifield W. Huff for respondents.

(1) As a general rule statutes of limitations apply equally to legal and equitable actions. Kelly v. Hunt, 61 Mo. 463, 74 Mo. 561; Bradshaw v. Yates, 67 Mo. 221; Real Estate Co. v. Lindell, 142 Mo. 79. (2) In those cases in which equity departs from this rule and applies the doctrine of laches, the party in whose favor the departure is made must show that the delay has injured him, or that the party causing the delay owed him some duty. Mere delay is not sufficient. Condit v. Maxwell, 142 Mo. 266; Safe Deposit Co. v. Kennett, 101 Mo.App. 397; Lasher v. McCreary, 66 F. 834. (3) This was in no sense an executory trust; on the contrary, the Statute of Uses executed the trust immediately it was made, and the grantees took the legal title. R.S. 1899, sec. 4589; Pugh v. Hays, 113 Mo. 431; Roberts v. Mosely, 51 Mo. 282; Cornwell v. Wulff, 148 Mo. 556; Speed v. Railroad, 163 Mo. 129.

BURGESS, P. J. Gantt, J., concurs, Fox, J., not sitting.

OPINION

BURGESS, P. J.

This suit was instituted in the circuit court of St. Francois county on the 12th day of December, 1899. The petition is in two counts. The first count is for the purpose of setting aside a conveyance by defendant Crawley to his codefendants as to a two-thirds interest in the land in the petition described, and that the title to said two-thirds interest in said land be divested out of the defendants James H. Shannon, John C. Shannon, C. W. Shannon and I. N. Shannon and vested in the plaintiffs. The second count is for partition of the land in accordance with their respective rights as set forth therein.

The trial court rendered a decree vesting title to the undivided two-thirds of the land in controversy in plaintiffs and rendered judgment in favor of its partition as prayed for.

In due time the defendants, except Samuel L. Crawley, filed motions for new trial and in arrest, which being overruled they saved their exceptions, and bring the case to this court by appeal for review. The contract is as follows:

"This instrument of writing made this -- day of October, A. D. 1888, witnesseth, That I, Samuel Crawley, of the county of St. Francois and State of Missouri, in consideration of the sum of one dollar to me in hand paid by James H. Bethune and H. J. Cantwell, the receipt of which is hereby acknowledged, do hold in trust for the said Bethune and Cantwell two undivided third interests in all rights and interest acquired or to be acquired by me under and by virtue of an agreement by George M. Williams to convey to me, the said Crawley, all of that part of the northeast quarter and a strip off the northeast side of the northwest quarter of section eight, township thirty-six, range five east, lying on the north side of the county road leading from Farmington in St. Francois county, to Potosi in Washington county, Missouri, upon the terms and conditions therein specified, also two undivided thirds of that part of the south half of the northeast quarter and the southeast quarter of the northeast quarter in section eight, township thirty-six north, of range five east, lying south of the county road leading from Farmington to Potosi, and east of the tract of land in said northwest quarter of section eight, as aforesaid, and conveyed by Wm. R. Taylor and wife to J. H. and C. W. Shannon, the land hereby conveyed containing by estimation, seven and a half acres more or less.

"All the above lands, rights and interests were purchased by me, the said Crawley, with funds furnished in equal parts by me, Cantwell and Bethune.

"In witness whereof, I have hereunto signed my name and affixed my seal this 1st day of November, 1888.

"Sam Crawley.

(Seal.)"

The trial court found the facts to be as follows:

"The court finds as a fact in the above entitled cause that on the -- day of October, 1888, Samuel L. Crawley, for a valuable consideration to him paid by James H. Bethune and H. J Cantwell, the original plaintiffs in this case, executed an instrument by which he agreed with the said parties that two undivided third parts of all the rights and interests acquired or to be acquired by him in and to a tract of land containing about seven and one-half acres, which is described in the petition in said instrument, was to belong to the said Bethune and Cantwell; that in said instrument said seven and one-half acres was described as follows: 'That part of the south half of the northeast quarter and the southeast quarter of the northwest quarter in section 8, township 36 north, of range 5 east, lying south of the county road leading from Farmington to Potosi, and east of the tract of land in said northwest quarter of section 8, aforesaid, conveyed by W. R. Taylor and wife to J. H. and C. W. Shannon.' That said instrument by which said Crawley agreed to hold said lands for the benefit of said Cantwell and Bethune was duly acknowledged November 1, 1888, and filed for record in the recorder's office of St. Francois county on the 14th day of August, 1889, and recorded in book 39 at page 142. That subsequent to said conveyance as aforesaid, and subsequent to the record thereof, the said Samuel L. Crawley made a second conveyance by which he attempted to convey the whole of the seven and one-half acres above described to defendants, James H. Shannon, John C. Shannon, C. W. Shannon and I. N. Shannon, which conveyance from said Crawley to the last above-named defendants was dated the 28th day of February, 1891, and recorded in the recorder's office of St. Francois county in book 41, at page 235. That at the time of said purchase by said defendants this property was wild land in possession of no one, and that the same was not occupied by either party to this suit until sometime in 1891, or 1892, less than ten years before the bringing of this suit.

"The court further finds that the said James H. Shannon, John C Shannon, C. W. Shannon and I. N. Shannon at the time of their purchase had full notice and knowledge from the record of all the rights and interests of the said Bethune and Cantwell, as in said agreement above referred to fully set out, and purchased...