D'Oench v. Gillioz

• Decision Date: 07 May 1940
• Docket Number: 36336
• Parties: William D'Oench, Appellant, v. M. E. Gillioz et al
• Court: Missouri Supreme Court

139 S.W.2d 921

346 Mo. 179

William D'Oench, Appellant, v. M. E. Gillioz et al

No. 36336

Supreme Court of Missouri

May 7, 1940

Appeal from Barry Circuit Court; Hon. Emory E. Smith Judge.

Affirmed.

John W. Giesecke, Farrington & Curtis and Claude E Curtis for appellant.

The contract and agreement pleaded in plaintiff's amended bill in equity created an express trust, and plaintiff's amended bill in equity states a cause of action against defendants and states and pleads sufficient facts upon which the court could render the judgment and decree prayed for. Starks v. Lincoln, 291 S.W. 132, 316 Mo. 483; Mendenhall v. Pearce, 20 S.W.2d 670, 323 Mo. 964; Darling v. Buddy, 1 S.W.2d 163, 318 Mo. 784; Boden v. Johnson, 47 S.W.2d 155, 226 Mo.App. 787; Van Studdiford v. Randolph, 49 S.W.2d 250; Musgrove v. Macon County Bank, 174 S.W. 171, 187 Mo.App. 483; Hillman v. Allen, 47 S.W. 509, 145 Mo 638; Constant v. Simon, 259 S.W. 424, 303 Mo. 203; Heil v. Heil, 84 S.W. 45, 184 Mo. 665; Flagg v. Walker, 28 L.Ed. 1072, 5 S.Ct. 697; Sturdivant Bank v. Houck, 47 S.W.2d 135, 113 U.S. 659; 65 C. J., sec. 62, pp. 280-281-282.

James E. Sater for respondents.

It is conceded by appellant that if the contract set out in his petition does not create an express trust, then the trial court was correct in sustaining the demurrer to the petition. The Central State Bank by the contract sold, transferred and delivered all of its assets to the Monett State Bank and Trust Company, upon the consideration of the assumption of the liabilities of the Central State Bank, except the capital stock liability, and upon a future contingency additional payment might be made. The title to all the property passed to the Monett State Bank and Trust Company, and the future contingency did not create a trust, but, under the law, prevented a trust. It is well settled in this State that in an express trust the title of the trust estate vests at the time of the execution of the instrument and not upon the happening of some contingency in the future. Sell v. West, 125 Mo. 621; Trautz v. Lemp, 46 S.W.2d 139, 329 Mo. 580; Van Studdiford v. Randolph, 49 S.W.2d 250; Sturdivant Bank v. Houck, 47 S.W.2d 135; Waisco v. Oshkosh Savs. & Trust Co., 196 N.W. 829; Dorrah v. Pemiscot County Bank, 256 S.W. 560; Vogelar v. Punch, 205 Mo. 558.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action in equity for the declaration of an express trust in certain real and personal property, formerly owned by a banking corporation of which plaintiff was a stockholder, an accounting, removal of officers and directors of the bank, appointment of a receiver, and orders of distribution to plaintiff and other stockholders as alleged beneficiaries. The court sustained defendants' general demurrer to the petition and entered judgment of dismissal, from which plaintiff has appealed.

Plaintiff alleged that he was the owner of 65 shares of the capital stock (total shares were 500) of the Central State Bank of Monett, and stated that this bank's transaction with defendants, upon which plaintiff's claim is based, was as follows:

"Plaintiff further states that said Central State Bank of Monett, Missouri, desiring to liquidate and cease doing business as a banking institution, did at Monett, Barry County, Missouri, on the 1st day of February, 1930, through and by its president and secretary, who were duly clothed with authority by the board of directors to act on behalf of said bank and by and with consent of the stockholders of the bank, enter into a written contract with the president and secretary of the Monett State Bank and Trust Company of Monett, Missouri, who were duly authorized by the board of directors of said bank to act on behalf of the bank, for the purchase by said Monett State Bank and Trust Company from the Central State Bank of Monett of all of the assets of the latter bank, and for the assumption by the Monett State Bank and Trust Company of all the liabilities of the Central State Bank of Monett, except capital stock liability, which contract was duly signed, sealed, and executed, and which reads as follows:

"Whereas, those owning two-thirds or more of the capital stock of record of the Central State Bank, Monett, Missouri, a corporation organized under the laws of the State of Missouri, and more particularly under the laws relating to the organization of banking corporations, have by an instrument of writing, executed and acknowledged by said stockholders, consented to the sale of all of the assets of the Central State Bank, Monett, Missouri, to the Monett State Bank and Trust Company, Monett, Missouri, in consideration of the assumption of all of the liabilities of the Central State Bank, Monett, Missouri, by the Monett State Bank and Trust Company, Monett, Missouri (except capital stock liability), and have authorized its board of directors to enter into a contract for the consummation of said sale, all in accordance with the provisions of Section 1176, Laws of Missouri, 1927, page 232, and

"Whereas, the directors of the Monett State Bank and Trust Company, Monett, Missouri, a corporation organized under the laws of the State of Missouri, and more particularly under the laws relating to the organization of banks, by appropriate resolution have authorized its President and Secretary to enter into a contract with the Director of the Central State Bank, Monett, Missouri, for the purchase of the assets of the Central State Bank, Monett, Missouri, and the assumption of its liabilities (except capital stock liability).

"Now, therefore, in consideration of the premises and of the mutual obligations herein referred to, and for other good and valuable considerations hereunto moving them, it is hereby agreed by and between the Central State Bank, Monett, Missouri, party of the first part, and the Monett State Bank and Trust Company, Monett, Missouri, party of the second part, that in consideration of the transfer of all the assets of the party of the first part to the party of the second part, a complete list of which is hereto attached and marked 'Exhibit A,' and incorporated herein by reference as though the same were fully set out herein, the party of the second part hereby covenants and agrees to assume and pay all amounts due from said party of the first part to its depositors and all of the creditors, except stockholders for their stock representing the capital of the party of the first part. A list of all amounts due depositors and creditors of record on the books of the party of the first part is hereto attached and marked 'Exhibit B' and incorporated herein by reference as though the same was fully set out herein. And a certified copy of the resolution adopted by the board of directors of the party of the first part, authorizing the execution of this contract, is hereto attached and marked 'Exhibit C;' and a certified copy of the resolution adopted by the board of directors of the party of the second part authorizing the execution of this contract, is hereto attached and marked 'Exhibit D.'

"It is further understood and agreed that, should the Monett State Bank and Trust Company, Monett, Missouri, purchase any notes from the Central State Bank, Monett, Missouri, that have the same maker as notes held by the Monett State Bank and Trust Company, Monett, Missouri, and said maker should make a payment or payments on such note, then, and in that event, the payment or payments should be proportioned on the notes as held by each bank this date as their interests may appear, except where notes are secured by collateral, mortgage or other security, then, in that event, such payment or payments shall be credited on the unsecured notes by the party of the second part.

"It is especially understood and agreed, and is made a warranty on the part of the party of the first part, that the party of the first part has no liabilities other than those mentioned herein and in exhibit hereto attached.

"This contract shall be effective as of the 1st day of February, 1930, and the party of the second part agrees to assume all liabilities of record on the books of the party of the first part, except capital stock, as of the 1st day of February, 1930, and the party of the first part agrees that the whole of its property and assets of record on its books as of the 1st day of February, 1930, shall be transferred to the party of the second part, and that the schedule hereto attached and marked exhibits actually represent the assets respectively of the party of the first part, other than capital stock liability as of the 1st day of February, 1930.

"It is further agreed that sufficient of the assets purchased, to equal in amount the deposits and other liabilities assumed, shall be carried by the party of the second part as primary assets, and all remaining assets shall be carried as secondary assets, all the secondary assets to be held as collateral to the primary assets, for a period of two years, from this date.

"It is further agreed that final and complete settlement shall be made under this contract two (2) years from the date hereof, at which time the residue, if any, of said secondary assets shall be turned over and delivered to the party of the first part, for its stockholders." (Italics ours.)

Plaintiff further alleged that "the defendants have paid to the Central State Bank of Monett, Missouri, a dividend (per cent not stated) but have not turned over to said Central State Bank the secondary assets aforesaid nor any profits therefrom that remained on February 1, 1932, but have sold and disposed of part of the profits as well as the...