Dexter v. Macdonald

• Decision Date: 29 March 1906
• Citation: 95 S.W. 359,196 Mo. 373
• Parties: DEXTER v. MACDONALD et al.
• Court: Missouri Supreme Court

95 S.W. 359

196 Mo. 373

DEXTER v. MACDONALD et al.

Supreme Court of Missouri, Division No. 2.

March 29, 1906.

Rehearing Denied May 22, 1906.

1. EVIDENCE—PAROL EVIDENCE.

Where an undertaking is reduced to writing, it is conclusively presumed, in the absence of fraud, accident, or mistake, that the whole agreement of the parties is in writing.

2. TRUSTS—EXPRESS TRUSTS—NECESSITY OF WRITING.

The creation of an express trust must be manifested or proven by a written instrument.

3. SAME—SUFFIENCY OF LANGUAGE.

One purchasing land, paying therefor, and taking a warranty deed without conditions, executed an instrument whereby he agreed to allow a third person a half "of the net profits of the sale of * * * land when sold, being the same land this day bought by me." Held, that the instrument did not create a trust binding the purchaser to hold the legal title

for the third person for a half interest in the land.

4. EQUITY—LACHES—LAPSE OF TIME.

A purchaser of land in 1890 executed an instrument whereby he agreed to allow a third person a half of the net profits of the sale of the land when sold. In the same year the purchaser sold a part of the land and out of the proceeds he repaid himself the purchase price of the entire tract and the commission of the person making the sale, and divided the remainder with the third person, who had full knowledge of the facts. The purchaser died in 1900. Prior to his death the third person made no claim for a share of the net profits of the balance of the land, and did not bring suit therefor until 1902, and he gave no explanation for the delay. Held that, conceding that the remaining portion of the land should be treated as personal property and clear profit, the claim of the third person to share therein was barred by laches.

5. SAME—PLEADING LACHES—NECESSITY.

Where, in a suit in equity, the petition and evidence show laches sufficient to defeat the relief demanded, the defense of laches need not be pleaded in order to be available.

6. SAME—SUFFICIENCY OF PLEADING.

Though laches be not pleaded, yet the interposition of the statute of limitations as a defense to a suit in equity furnishes plaintiff with a sufficient suggestion of the necessity of offering an excuse for delay in instituting the suit.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Charles Dexter against Malcolm W. MacDonald and others. From a judgment for plaintiff, defendants appeal. Reversed.

This cause is brought here by appeal from a decree and judgment of the St. Louis circuit court. It is unnecessary to reproduce the pleadings upon which this judgment rests. It will suffice to say that this is a proceeding in equity to compel the heirs of Robert S. MacDonald, deceased, to convey to plaintiff an undivided one-half interest in 172 lots of vacant ground in "MacDonald's East Clairmont Addition," in St. Clair county, Ill., and which addition is a suburb to the city of East St. Louis; and this relief is prayed on the ground that said MacDonald, in his lifetime, held title to said real estate as trustee for himself and plaintiff under an express trust, created by an instrument of writing alleged to have been executed by said deceased, and which is in the following language, viz:

                              "St. Louis, April 23rd, 1890
                

"Law Office of R. S. MacDonald, No. 721 Pine Street. I hereby agree to allow Charles Dexter one-half of the net profits of the sale of the forty acres of land (when sold), being the same land this day bought by me from Eugene Latinette in St. Clair county,

                Illinois.             R. S. MacDonald."
                

The facts developed upon the trial of this cause may be briefly stated as follows: On the 19th day of March, 1890, there was a contract of purchase of this land entered into in the name of one George Allen, for the purchase of the land in controversy, with one George Locke, representing Eugene Latinette, who was then the owner of the land. The purchase price agreed upon in this contract was $3,000. Plaintiff in this proceding, in the negotiation of this contract, paid $100 earnest money. The contract of purchase of March 19, 1890, was introduced in evidence, by the terms of which one Eugene Latinette, then owner of said 40 acres of ground, agreed to sell same to one George Allen for the sum of $3,000 cash, deal to be closed within 30 days from date of same, and acknowledged receipt of the sum of $100 on account of said purchase price. This paper was signed: "Eugene Latinette, by Geo. W. Locke, Aget," and "George Allen, by Chas. Dexter." George W. Locke, who represented Latinette in this deal, testified that the property was subsequently purchased under the contract of March 19, 1890. It appears from Locke's testimony that about the time this contract was about to expire, that he went with Dexter to the office of R. S. MacDonald. He says that MacDonald and Dexter had some conversation, and that Dexter handed him (Locke), in money, $3,000, or $2,900, witness did not remember which, and that witness handed the deed to said property to Dexter at the time. The witness was not positive as to the form of the deed; could not remember whether the grantee's name was written in the deed at or before delivery. This witness, on cross-examination, first stated that the $2,900 or $3,000 paid at that time was in cash and in greenbacks and that when he first saw the money it was in Mr. Dexter's hand, though he did not see him get it out of his pocket, and swore rather positively that payment was not made with check. However, subsequently MacDonald's check in the sum of $2,900, dated April 23, 1890, payable to Latinette, was shown witness, and he identified the payee's indorsement thereon. This witness, after having his memory refreshed, stated that MacDonald used to speak to him about "our property over the river," and when speaking of the property in that way the plaintiff, Dexter, was present. Plaintiff introduced in evidence, over the objection of the defendants, the following assignment of all claims to the lands in controversy, from Charles Dexter to Wyllian K. Dexter:

"Received of Wyllian K. Dexter on the within contract as per dates and amounts below:

                ---------------------------------------
                Date.      Amount. |  Date.     Amount
                ---------------------------------------
                

"May 1st, 1899, $3,000.00, owing out of the mortgage of Minneapolis, Aug. 1, 1892. Valuable consideration.

"In consideration of the above advancement of money I hereby assign all my right to a certain forty-acre tract of land as well as the profits arising from the sales situated in St. Clair county, state of Illinois, known as the `Latinette Forty' bought by me of Eugene Latinette, March 19th, 1890, in the name of George Allen and deeded in trust to Robert MacDonald, of St. Louis, Mo., to be sold for our mutual benefit. This includes profits as well as titles, said land being platted and called `MacDonald's East Claremont'; reference being had for a more particular description to the deed from Eugene Latinette, to Robert MacDonald dated 23d April, 1890, together with the map or plat of the addition, both being on file in the office of the recorder of deeds of St. Clair county, state of Illinois.

                                         "Charles Dexter."
                

Also the following reassignment from Wyllian K. Dexter to Charles Dexter:

                        "St. Louis, Mo., April 23d, 1892
                

"Whereas, on April 23d, 1890, the following contract was made between Robert S. MacDonald, of St. Louis, Mo., and Charles Dexter, of said city, viz.:

                        "`St. Louis, Mo., April 23d, 1892
                

"`I hereby agree to allow Charles Dexter one-half of the net profits of the same of the forty acres of land (when sold) being the same land this day bought by me from Eugene Latinette in St. Clair county, Illinois.

                                  "`Robert S. MacDonald.'
                

"And whereas, all title and interest in said contract was conveyed to Wyllian K. Dexter, wife of Charles Dexter, on Aug. 1, 1892, and filed for record in the office of the recorder of deeds for St. Clair county, Jan. 27th, 1902, I do hereby, in consideration of one dollar and other valuable consideration, make a conveyance of all my right, title, and interest in said contract made between MacDonald and Dexter to said Charles Dexter.

                                    "Wyllian K. Dexter."
                

It is disclosed by the record that Wyllian K. Dexter, wife of plaintiff herein, presented a claim against the estate of Robert S. MacDonald, deceased, in the probate court of the city of St. Louis, based on the assignment of her husband's claim as herein indicated. Before a decision was reached in that case the claim was withdrawn. Witness French R. Session, as it is disclosed from the record, had testified in the suit pending in the probate court between Mrs. Dexter and the estate of R. S. MacDonald. His testimony was preserved, and by stipulation between counsel in this cause it was introduced on the part of the plaintiff, subject to all objections as to its relevancy and competency. The substance of his testimony may be briefly stated as follows: He stated that the property mentioned in the paper of date of April 23, 1890, under which plaintiff claims, was afterwards platted and came to be known as "MacDonald's East Clairmont Addition," and was outside of the city limits of East St. Louis, about 2,000 or 3,000 feet from the city limits; and further testified, in substance, as follows: "Subsequent to the date of this paper I had connection with this property and sold somewhere between 2,200 and 2,500 feet of it to parties in Jacksonville, Illinois. Most of my dealings were with Mr. MacDonald's office at Eighth and Pine streets. My recollection is that the price was $4 per foot. It was after the date of this memorandum that I sold the property. That is, after 1890. There were present on the occasion referred to, when the deal was closed, Mr. MacDonald, Mr. Dexter, Mr. Leonard Chambers, of Jacksonville, and myself. I had the selling...