Carr v. Barr
| Decision Date | 19 June 1922 |
| Parties | DOLLIE M. CARR et al., Appellants, v. IRENE BALLIET BARR et al |
| Court | Missouri Supreme Court |
Appeal from Shelby Circuit Court. -- Hon. V. L. Drain, Judge.
Reversed.
R. G Maupin and Harry J. Libby for appellants.
(1) The ninth clause of the will being imperative, and the duty to sell mandatory, this clause created not a mere power, but an express trust to sell the land, and amounted to an equitable conversion of the "Moss Farm" from land into money as of the date of death of the testatrix, and the farm became thereby trust property and a trust fund specifically charged with the trust of discharging the trust deed indebtedness and extinguishing the lien on the remaining tracts. 3 Pomeroy's Eq. Juris. (3 Ed.) secs. 991 to 993; 2 Perry on Trusts (6 Ed.) secs. 557-562; Compton v. McMahan, 19 Mo.App. 494; Nall v. Nall, 243 Mo. 247; Griffeth v. Witten, 252 Mo. 627; De Lashmutt v. Teetor, 261 Mo. 412; Gilbreath, v. Cosgrove, 193 Mo.App 419. (2) Non-exercise of the trust by Minnie A. D. Dunning Balliett, one of the named donees of the powers, or her attempted subversion of it by committing execution to the remaining two donees, one of whom was an unfortunate old insane man, whom she knew could never exercise it, cannot impair the rights of plaintiffs. Lechmers v. Earl of Carlyle, 3 P. Wms. 215; 1 Leading Cases in Eq. p. 611. (3) The failure of the trustees to execute the trust did not extinguish it. Property once charged with a valid trust will be followed in equity into whosesoever hands it comes, and he will be charged with the execution of the trust, save only when he be a purchaser for value and without notice. 1 Perry on Trusts (6 Ed.) sec. 38; 3 Pomeroy's Eq. Juris. (3 Ed,) sec. 1048; Edwards v. Welton, 25 Mo. 379; Coffee v. Couch, 28 Mo. 106; Paul v. Fulton, 25 Mo 156; Darling v. Potts, 118 Mo. 506; Witte v Storm, 236 Mo. 492; Elliott v. Machine Co., 236 Mo. 563. (4) Minnie A. D. Dunning Balliett, being both a devisee and trustee under the will, and the will having been admitted to probate in Shelby County, where the land is situated, took title with both actual and constructive notice of the trust with which the "Moss Farm" was charged. And her devisee and grantee (Irene Balliett Barr) took no higher title than did said Minnie A. D. Dunning Balliett, and they, like she, hold the title subject to the trust and subject to its execution and enforcement. Davis v. Cummings, 195 S.W. 755; Case v. Goodman, 250 Mo. 115; McDonald v. Quick, 139 Mo. 498; Patterson v. Booth, 103 Mo. 402; Tidings v. Pitcher, 82 Mo. 379; Orrick v. Durham, 79 Mo. 174. (5) Charges for the payment of debts and legacies will follow the land even in the hands of a bona-fide purchaser for value, without actual notice, for the purchaser is affected in such cases with constructive notice of the charge. 2 Alexander Com. on Wills, p. 1163, sec. 803; Harris v. Fly, 7 Paige Ch. (N.Y.) 421; Wallington v. Taylor, 1 N.J.Eq. (Saxt.) 314. (6) Equity will not compel a trustee to take upon himself the burdens of a trust, yet where the trust has been declared or established or where the trustee has accepted the trust, equity, so long as it is possible to do so, will not permit the trustee to defeat the trust by his wrongful act or by his failure or refusal to act, but will afford relief by compelling a faithful execution of the trust for the preservation and enforcement of rights dependent upon and derivable from it. Duncan v. Simmons, 2 Stew. & P. 356; Cross v. Petree, 10 B. Monroe, 413; Switzer v. Skies, 3 Gill, 529; Cooper v. McClun, 16 Ill. 435; Gunther v. Janes, 9 Cal. 643; O'Fallon v. Clopton, 89 Mo. 284. (7) Plaintiffs have a right to compel an execution of the trust, and an application of the value of the "Moss Farm," as of August 30, 1886, the date of its wrongful acquisition by Minnie A. D. Dunning Balliett, to the discharge of the trust deeds, 2 Perry on Trusts (6 Ed.) sec. 560. (8) No formal acceptance of the trust to sell the "Moss Farm," and to preserve the property of the minor until she attained twenty-one years of age was required of Mrs. Balliett. No ceremony of taking oath or giving bond was requisite to her execution of those trusts. In this State it is held that after the elapse of years and in the absence of a disclaimer the acceptance of the trust may be presumed, even when no act has been done by the trustee to indicate an acceptance. Roberts v. Mosely, 64 Mo. 507; Bandon v. Carter, 119 Mo. 582; Jamison v. Zausch, 227 Mo. 415. Had Mrs. Balliett acted unequivocally in her dealings with these trusts she would have disavowed and renounced them. That course was open to her, and easy of accomplishment. She could have resigned in writing, or she could have filed a written disclaimer. This would have made her position clear, her course certain, her intention plain. But she did not do this. She chose to lay by, not acting herself, yet not disclaiming or resigning. She placed herself in a most equivocal position, and by not herself acting, and by not disclaiming or resigning, she committed execution of the trust to the remaining two, one of whom, her father, she knew to be an insane man, who could never execute it, thus leaving but the old sister-in-law remaining, who not herself constituting a majority, manifestly could not act. By not acting, she assured non-execution of the trusts paving the way for her own scheme to acquire the property to bud, blossom and bear fruit in due season. Nor did her equivocation stop here. Throughout, in her promises, representations, and assurances to the minor, upon acquisition of the title at the trustee sale, she maintained this same attitude. Before trustees can free themselves of a trust and claim adversely, they must act with the utmost frankness and candor. They must by open and unequivocal act deny the trust. This she never did. Butler v. Lawson, 72 Mo. 249; McGuire v. Nugent, 103 Mo. 161; Stanley's Estate v. Pence, 66 N.E. 51; Thomas v. Merry, 113 Ind. 83; St. Louis Trust Co. v. Harborough, 205 S.W. 496. (9) Minnie A. D. Dunning Balliett, although a married woman, and although disqualified from acting as executrix, was notwithstanding, competent and qualified to act as trustee of the trusts created by the will. 1 Perry on Trusts (6 Ed.) secs. 48-51; Springer v. Berry, 47 Me. 330; Jones v. Roberts, 61 N.H. 216; Sawyers Appeal, 16 N.H. 459; Lake v. Lambert, 4 Ves. Jr. 592; Fullam v. Rose, 160 Pa. St. 47; Schluter v. Box. Svgs Bank, 117 N.Y. 125; Young v. Shelton, 139 Ala. 144; Osgood v. Bliss, 141 Mass. 474. (10) Being then trustee of an express trust to sell the Moss Farm and remove the incumbrance, and furthermore trustee of an express trust to hold, manage and preserve the estate of Dollie M. Dunning until she attained twenty-one years of age, and having power to sell the Moss Farm and remove the incumbrance under the power of sale conferred by will, the act of Minnie A. D. Dunning Balliett in intruding herself into, intermeddling with and bringing about the foreclosure of the Reid trust deed for the purpose of acquiring title to the trust property and to plaintiff's property, and her act in bidding in both the Moss and River farms, each at an unconscionable sacrifice, was clearly fraudulent. Stitt v. Stitt, 205 Mo. 155; Goellner v. Goellner, 178 S.W. 229. (11) The rule is fundamental that a trustee cannot acquire an interest in trust property adverse to the trust. When he does purchase in his own name an outstanding title, incumbrance or claim, or any interest in the trust property, the purchase will be held to inure to the benefit of the cestui que trust. A trustee is forbidden to acquire title under an outstanding incumbrance, even though such purchase is at a judicial sale and under a title superior to that conveyed to him as trustee. In such cases his purchase is treated as a payment or an assignment of the mortgage only, and the trustee will be allowed just what he paid out. Roberts v. Mosely, 64 Mo. 507; Baker v. Railroad, 86 Mo. 75; Jamison v. Glasscock, 29 Mo. 191; Turner v. Butler, 126 Mo. 131; McAllen v. Woodcock, 60 Mo. 174; Ownby v. Ely, 58 Mo. 475; Massey v. Young, 73 Mo. 260; Howard v. Brown, 197 Mo. 36; Condit v. Maxwell, 142 Mo. 266; Witte v. Storm, 236 Mo. 470; Cushman v. Bonfield, 139 Ill. 219; Rankin v. Bancroft, 114 Ill. 441; Taylor v. Calvert, 138 Ind. 67; Lenox v. Notrebe, F. Case, No. 8246b (Hamp.) 225; Cavogora v. Dan, 63 Cal. 227; Renew v. Butler, 30 Ga. 954; Houston v. Crutchfield, 22 Ala. 76; Darling v. Potts, 118 Mo. 506; Van Epps v. Van Epps, 9 Paige, 237; Bank v. Terry, 7 Hill, 260; Slade v. Van Vechten, 11 Paige, 21; Keaton v. Cobb, 16 N.C. 439; Gilman v. Healy, 49 Hun, 274. (12) The holder of the legal title to lands will, in equity, be charged as a trustee, where it was acquired by fraud or under such circumstances as to render it inequitable for him to retain it. Stephenson v. Smith, 7 Mo. 610; Northcutt v. Martin, 28 Mo. 469; Grumley v. Webb, 44 Mo. 444; Damschroeder v. Thias, 51 Mo. 100; Phillips v. Hardenberg, 181 Mo. 463; Phillips v. Jackson, 240 Mo. 310; Canada v. Daniels, 175 Mo.App. 55. (13) Where the facts show that plaintiff's property was sold under execution or under foreclosure of a trust deed, and purchased by defendant at a price below its real value; that competitive bidding was prevented because plaintiff relied on defendant's agreement to hold the property for and re-convey to him, and that defendant did not carry out his promise, the property will be impressed in defendant's hands, and those of his grantees with notice, with a constructive trust in favor of the plaintiff. Phillips v. Jackson, 240 Mo. 335; O'Day v. Realty Co., 191 S.W. 41; Bunel v. Nester, 203 Mo. 429; Harrison v. Gravens, 188 Mo. 610; Phillips v. Hardenburg, ...
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