Clark v. Maguire

• Decision Date: 31 March 1852
• Citation: 16 Mo. 302
• Parties: CLARK, Plaintiff in Error, v. MAGUIRE, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 302

CLARK, Plaintiff in Error,

v.MAGUIRE, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

1. A. conveyed to B. one-half of certain capital stock “in trust for the sole benefit of the wife of C. and her children;” also, one-half of the profits arising from the stock, “to be applied by B. for the benefit of C.'s wife and her children.” Held, this language is sufficient to exclude C.'s marital right to the profits.

2. A trustee has no power, by a deed substituting another trustee, to change the nature of the trust, or the use of the trust fund.

3. No particular form of words is necessary to vest property in a married woman to her separate use, so as to exclude the marital rights of her husband. Any words which indicate the intention will be sufficient.

Error to St. Louis Circuit Court.

This was an action of trespass by the plaintiff in error, against the defendant in error, for taking personal property, and the questions which arise upon the record, involve the construction of two deeds under which the plaintiff claimed the property taken, the case turning upon the question of his title, under the deeds, to the property; the plaintiff submitted to a non-suit, under the instruction of the court, that, “upon the whole of the evidence in this case, the plaintiff is not entitled to recover in this action.”

The facts, as they appeared in evidence, are as follows: The sheriff of St. Louis county, under two executions in favor of the defendant here, Maguire, against Dennis Marks, levied upon certain flour, wheat and barrels claimed by the plaintiff, Clark, and identified as part of the property referred to in the deeds under which Clark claimed title, also given in evidence, and sold it and applied the proceeds to the payment of the executions in favor of Maguire. The levy and sale were made by the express directions, both verbally and in writing, of Maguire.

The plaintiff, to show his title to the property, showed Henry D. Bacon in possession of a mill, as lessee, and owning the personal property at the mill; the plaintiff then gave in evidence a deed from Henry D. Bacon to Joshua H. Alexander, dated July 17th, 1846 (recorded the same day), by which deed, after reciting that his sister, Mrs. Amira M. Marks, wife of Dennis Marks, of St. Louis, by reason of the failure of her husband in business, then stood in need of the aid and support of her own blood relatives and near friends, and that it was his desire to make for her such comfortable and independent provision as might be in his power, he conveyed to Alexander half of the capital stock and property vested in and used by him in carrying on the mill, in trust, that he, Alexander, should hold it for the sole benefit of Mrs. Marks (his sister, wife of Dennis Marks), and her children, and to remain for a time vested in that business; and when the business ceased, one-half to remain his (Bacon's) property, and the other to be delivered to the trustee, to be by him applied for the benefit of Mrs. Marks and her children, and providing that the trustee, whenever he should receive any money or property by virtue of that deed, should pay and deliver it to Mrs. Marks, to be by her employed, as she might judge best, for the interest of herself and her children. And if, after the death of said Mrs. Marks, there remain in, or come to, the hands of the trustee, any money or property on the account aforesaid, the same should be held and disposed of for the interest of her surviving children, in equal shares.

The plaintiff also gave in evidence a deed from said Alexander to himself, dated the second day of July, 1847, and recorded the same day, whereby, after referring to the foregoing deed, and reciting that the joint business under it had terminated, and that Bacon had settled with him and had ascertained the amount due to him, under that deed, and that Mrs. Marks had directed him to deliver and pay said property to the plaintiff, to be held by him, as trustee, for the benefit of herself and her children, he, by the express consent and direction of Mrs. Marks, evidenced by her signature to the deed, conveyed the same to the plaintiff, in trust, that the same should be used and employed in such manner, and in such business, and should be placed in the custody and under the control of such person or persons as the said Amira Marks might, at any time, in writing, direct; and that the same should be assigned, transferred, and disposed of in such manner, and to such persons, as she, the said Amira, might, in writing, direct.

The plaintiff also gave in evidence the lease to Henry D. Bacon, and an assignment of it, dated July 2d, 1847, to the plaintiff, as trustee for Mrs. Amira M. Marks and her children, for their sole use and benefit. And also gave in evidence a power of attorney from Luther C. Clark to Dennis Marks, by the direction of Mrs. Marks, authorizing him to take possession of said property, and to regard and carry out Mrs. Marks' directions in regard to said trust fund, and account to her for the proceeds he might receive therefrom.

It was also proved that Dennis Marks, up to the time of the levy, and since, had acted in managing and carrying on the mill, professedly as the agent of Luther C. Clark, trustee. And it was admitted that Mrs. Marks has four children, three of them minors. The plaintiff then closed his case, and the defendant made a point upon his title under the deeds, and the court so instructed the jury that the plaintiff submitted to a non-suit, and moved the court to set aside the same. The court overruled the motion, and the plaintiff brings the case here for the reversal of the judgment.

R. M. Field, for plaintiff in error.

I. The deed from Bacon to Alexander created an estate for the sole benefit of Mrs. Marks and her children, effectual to exclude all claims on the part of the husband or his creditors.

No technical words are necessary to create a separate estate in the wife. It is sufficient that, on the whole instrument, the intent to exclude the marital rights is manifest. 2 Stor. Eq. section 1382; Hill on Trustees, 420; Roper on Husb. and Wife, 158 et seq; Ex parte Ray, 1 Madd. 115; Wills v. Sayers, 4 Madd. 409. The word “sole” is sufficient for the purpose. See authorities cited, supra.

II. The deed from Alexander to Clark is in like manner effectual to exclude the husband's creditors, for it recites the

former deed, and obviously was intended simply to change the trustee and continue the former trusts.

III. Even if the second did not formally declare the trusts of the first deed, so as to exclude the creditors of the husband, still the property was holden by Clark, under the trusts of the first deed, for it was not competent for Alexander to change the trusts of the original donor. The creditor was permitted by the court below to hold the property, on the ground that the second deed did not, in terms, exclude the marital rights.

The error of the court here is palpable; for, as it was dealing with merely equitable rights, it was bound by the rules of equity; and it was admitted, that in a court of equity, the property would be bound by the trusts impressed upon it by the donor in the original deed. In short, the creditor was justified in seizing the property as equitably belonging to the debtor, when, at the same time, the court admitted the debtor had no equitable rights in it whatever.

It will be observed, that the decision of the court below goes entirely to defeat the rights of the children, as well as of the wife.

B. B. Dayton, for defendant in error.

The property, seized under the defendant's executions against Dennis Marks, was subject to such executions. The arrangement effected by the deeds, and power of attorney given in evidence, whereby it was sought to appropriate the labor and skill of Marks to the exclusive benefit of the pretended trust fund, in exclusion of his creditors, was fraudulent as against the latter. They had a right to the results of his skill and labor, whatever those might be. Patterson v. Campbell, 9 Ala. Rep. 933.

If Mrs. Marks and her trustee chose to mix up the trust fund with the skill and labor of Marks, so that their relative influence in producing the joint fruits, and the share of each party in such fruits, could not be distinguished and ascertained, she must suffer, and not creditors. The latter could seize the joint fruits and sell the same, or at least the interest of Marks. If they were entitled only to some undivided portion, as the interest of Marks, still it was necessary and proper to seize all, in order to get at his interest. Story on Bailments, fourth edition, page 44, section 40; Id. on Agency, page 193, section 205; Id. on Equity, vol. 2, page 523, section 1282.

The evidence shows a case of insolvency on the part of Marks.

The principle invoked in the present case is akin to that which governs a voluntary conveyance. Such a conveyance by a debtor would be void as against an existing creditor, no matter what may have been the intention of the debtor. No man can give away what belongs to his creditors. Reade v. Livingston, 3 Johnson's Ch. R. 481; see, also, Amer. Lead. C., vol. 1, page 52, notes; also, page 36 et seq.

The cases in Amer. Lead. C., vol. 1, page 319 to 327, are referred to, in support of the proposition that it was proper to seize all the property in question, to get at the interest of Marks.

It was suggested by a member of the court, that the trustee might be summoned as the garnishee of Marks. But under the terms of the deed, and the power of attorney, I respectfully suggest that the trustee could not be regarded as a debtor of Marks, or in any way responsible to him.

Todd & Krum, for same.

I. The deed of Bacon to Alexander plainly recognizes and embraces three distinct properties, and disposes of them differently and with different legal effect. 1. The half of the capital stock. 2. The half of the profits to arise therefrom. 3. The two notes and a pew. The...