Collins v. Shive

• Decision Date: 14 September 1953
• Docket Number: No. 43325,No. 1,43325,1
• Citation: 261 S.W.2d 58
• Parties: COLLINS v. SHIVE et al
• Court: Missouri Supreme Court

Page 58

261 S.W.2d 58

COLLINS v. SHIVE et al.

No. 43325.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 12, 1953.

Thurman, Nixon & Blackwell, J. W. Thurman, Jeremiah Nixon, Hillsboro, for appellants.

Richeson & Carr, Samuel Richeson, Robert L. Carr, Potosi, for respondent.

LOZIER, Commissioner.

Action to quiet title to real estate, establish a constructive trust and set aside certain conveyances for fraud. Defendant Williams died prior to trial time and defendants Allans (husband and wife) defaulted. The trial court found that plaintiff was the fee simple owner, subject only to a certain lien claimed by defendant M. A. Rust & Sons Realty Co. Only defendants Shive and the United Bible Institute (a religious-benevolent corporation) appealed.

Defendants-appellants contend that: The petition does not state a claim upon which relief can be granted; that alleged trust was not shown by clear, cogent and convincing evidence; all subsequent purchasers, as innocent purchasers without notice, were not chargeable with a constructive trust; plaintiff was guilty of laches.

The land involved, a 238 acre farm in Washington County, was conveyed to the Institute in July 1945 for $3,700, the Institute executing a (part purchase money) $2,200 deed of trust to O. F. Klaus, trustee for G. A. Johnson and wife Edith. On January 9, 1950, the Institute conveyed 60 acres to the Allans who executed two deeds of trust thereon to defendant E. G. Rust, trustee for defendant E. Riley--one for $1,300 and one for $1,500. (The $1,300 was part purchase money; $1,400 of the $1,500 was used to satisfy the Johnson deed of trust.) On February 10, 1950, the Institute conveyed the other 178 acres to the Allans who executed a (part purchase money) $1,600 deed of trust to Rust, trustee for Miss Riley. In August 1950, the $1,500 deed of trust on the 60 acres was foreclosed and Williams purchased for $2,500. In September 1950, Williams conveyed the 60 acres to defendant Celeste V. Boyce.

We can here quickly dispose of the matter of the Rust Company's lien. The deceased Williams, the Misses Riley and Boyce were employees, and Rust was an officer, of the Rust Company, for which all four had acted as straw parties. Plaintiff offered no evidence in support of his allegations of conspiracy between Shive and the company (which handled the transactions for Shive and the Allans) or its straw parties who, under defendants' evidence (including Shive's), acted in good faith. Rust and Miss Boyce first heard of plaintiff's claim when their depositions were taken some two months before the trial. Miss Boyce did not know the Allans or Williams, and did not know either plaintiff or Shive before her deposition was taken. Miss Riley had met Shive and the Allans in the company's office. The company's records showed that: the Allans purchased the 60 acres for $3,000, paid $200 'earnest money' and $115 closing charges; the company paid the $200 to the Institute; the company paid $1,400 of its own funds to satisfy the Johnson deed of trust and sold, repurchased and foreclosed the $1,500 deed of trust and bought at the trustee's sale for $2,500; the company expended part of the $1,000 surplus for interest, taxes, insurance and repairs and holds 'the few dollars left * * * in trust for someone.' The company still has the $1,300 and $1,600 deeds of trust (both of which it originally held as additional security for the $1,500 deed of trust) but claims no interest therein. According to Shive, the Allans were bona fide purchasers. The company's claim was supported by substantial, uncontroverted evidence and defendants-appellants Shive and the Institute do not now challenge the propriety of that claim. We concur in the trial court's allowance of the lien for $1,635 with 6% interest per annum from January 9, 1950.

Plaintiff alleged that: For 12 years prior to August 1, 1946, he had worked for Shive as a rat and pest exterminator in St. Louis and had been paid only about $100; he and Shive had an oral agreement that Shive 'would retain plaintiff's earnings until an amount sufficient had accumulated to pay for a home for plaintiff'; in 1945, plaintiff desired to purchase a house on Semple Avenue in St. Louis but Shive persuaded him that he should buy the Washington County farm, to which he consented and agreed that Shive 'should use plaintiff's money then in' Shive's hands for that purpose; thereafter Shive, 'with funds belonging to plaintiff,' purchased the farm and, 'unknown to plaintiff wrongfully and fraudulently and for the purpose of defrauding plaintiff caused the said deed to be made in the name of' the Institute, of which Shive was the president; Shive 'informed plaintiff that he had purchased a home for plaintiff'; on August 1, 1946, plaintiff moved to the farm and has been in exclusive possession ever since; Shive, 'wrongfully, fraudulently and for the purpose of injuring and defrauding plaintiff,' caused the Institute to execute the two conveyances to the Allans; Shive, 'conspiring' with the Institute and the Allans 'to injure and defraud plaintiff,' caused the Allans to execute and deliver the $1,500 and $1,600 deeds of trust; Shive, the Allans, Rust, Miss Riley and Williams, 'acting in concert and in conspiracy to injure, wrong and defraud plaintiff of his property,' caused the $1,500 deed of trust to be foreclosed and Williams to purchase at the trustee's sale; Miss Boyce, Williams' grantee, took with knowledge of plaintiff's rights; the Rust Company claimed an interest the nature of which was unknown to plaintiff; at all times all defendants had notice of plaintiff's rights and claims. Plaintiff prayed cancellation of the $1,500 deed of trust and that defendants be declared to hold title as trustees for plaintiff.

We rule adversely to defendants-appellants Shive and the Institute (hereinafter called defendants) their contention that the trial court erred in overruling their pre-trial motion to dismiss the petition for failure to state a claim upon which relief could be granted. Defendants point to the absence of any allegation that plaintiff's remedy at law was inadequate. Pleading that bare legal conclusion 'would serve no purpose.' Burton v. Helton, Mo.Sup., 257 S.W. 128, 129. Equity's jurisdiction hinges upon whether the petition, seeking equitable relief, affirmatively shows 'by the statement of facts,' that plaintiff's law remedy was inadequate. Palmer v. Marshall, Mo.App., 24 S.W.2d 229, 233. See also In re Connor's Estate, 254 Mo. 65, 162 S.W. 252, 254, 49 L.R.A.,N.S., 1108; Boynton v. Boynton, 186 Mo.App. 713, 172 S.W. 1175, 1176; State ex rel. Barnett School Dist. No. 66, Laclede County, v. Barton, Mo.App., 104 S.W.2d 284, 288[7, 8]. Defendants argue that the pleaded facts show only a claim against Shive for money had and received. However, plaintiff's allegations, if true, required cancellation of deeds for fraud, an exclusively equitable remedy. 'There cannot be in the very nature of things an adequate remedy at law as a substitute for such an action in equity.' Morris v. Hanssen, 336 Mo. 169, 78 S.W.2d 87, 91.

Defendants concede that the petition, 'in alleging fraudulent connivance among the numerous defendants and schemes to defraud plaintiff of his rights, pleaded the elements of a constructive trust.' But, they argue, there were other allegations indicating the existence of a resulting trust; 'a pleading that does not clearly set forth the theory upon which the pleader is proceeding in subject to a motion to dismiss and is fatally defective.' However, the 'mere absence of a definite theory as to the nature of the cause of action alleged and the relief sought ordinarily is not a ground for demurrer, and a demurrer for failure to state a cause of action will not be sustained if the plaintiff's pleading is good on any theory.' 71 C.J.S., Pleading, Sec. 232, p. 455. See 41 Am.Jur., Pleading, Sec. 81, p. 347.

Plaintiff testified that he was a 51 year old uneducated Alabama Negro, and started 'pedding' Shive's roach powders in St. Louis about 1931. He retained some of the money collected. As to compensation, Shive 'told me he was going to keep it and when I found a place to suit me * * * he was going to buy it for me.' In 1934 plaintiff started working for Shive in insect and rodent extermination work, and did that work until he moved to the farm in 1946. Shive did not pay him. 'He said that his home was in debt and when he had paid for his home then we would look around and find a farm for me, a home; * * * if I would stick with him he would stick with me until my home was completed the way I wanted it.' Shive once told plaintiff that the business brought in $600 or $650 monthly. During all that time Shive paid plaintiff only $130. Plaintiff worked for Shive in his off hours as he had other employment. 'I * * * done this in order I might pay for my home * * *.' Plaintiff kept no records. Other than the $130, plaintiff never asked Shive for money and did not know how much Shive owed him. On several occasions, Shive told him 'he was going to see I had my home' and once said, 'You have been with me and I am with you until your home is complete.' He said, 'Here is the reason we don't draw up any writing, if a man's word ain't no good, he ain't no good anyhow.'

All plaintiff knew about the Institute was what Shive told him and, so far as he knew, Shive was the Institute; plaintiff had no contact with the Institute or any of its officers except Shive; neither the Institute nor any of the board of directors had entered into a contract with him to purchase him a home. Shive once wrote him that plaintiff was on the board and was vice-president, and did not thereafter write or tell plaintiff that he had been taken off the board. Plaintiff attended no board meetings.

Once plaintiff was talking to Shive about buying a house on Semple Avenue. 'I saw a picture on the wall at...