Dexter v. MacDonald
| Decision Date | 22 May 1906 |
| Citation | 95 S.W. 359,196 Mo. 373 |
| Parties | DEXTER v. MACDONALD et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed.
Hickman P. Rodgers for appellants.
(1) There was no consideration for MacDonald's promise to Dexter. A bill in equity does not lie to enforce the performance of a voluntary promise of a gift. Brevator v Creech, 186 Mo. 558. The option from Latinette to Allen had expired prior to the purchase by MacDonald and MacDonald purchased directly from Latinette with his own money, taking title in his own name, as he had a right to do. An expired option can supply no part of a consideration. Plumb v Cooper, 121 Mo. 675. (2) The language employed in the writing under which plaintiff claims is not sufficient to create an express trust. Perry on Trusts, section 24; Heil v. Heil, 184 Mo. 665. It does not manifest that MacDonald intended to be charged as trustee -- a fatal defect. 2 Story's Equity Jur. (1886), note 2, pp. 29-30; Woodford v. Stephens, 51 Mo. 443. (3) The use of the words "net profits" in said writing, in the absence of any direct reference to an interest in the land, excludes any inference of such interest in the land. Plumb v. Cooper, 121 Mo. 668; Morrill v. Colehour, 82 Ill. 618. One may have an interest in the profits arising out of a thing without being a part owner in the thing. Wiggins v. Graham, 51 Mo. 17. (4) At the trial of the cause plaintiff stood on the proposition that MacDonald, deceased, was trustee under an express trust in favor of plaintiff, and the trial court so found; therefore, he must recover, if at all, on the theory of an express trust created by said writing; hence the court erred in admitting parol evidence. Heil v. Heil, 184 Mo. 665. (5) Courts of equity abhor stale claims and do not willingly enforce them. Watkins v. Donnelly, 88 Mo. 322; Davis v. Petty, 147 Mo. 374.
Benj. J. Klene, Clinton A. Welsh and Brownrigg & Mason for respondent.
(1) At the time of the conveyance under which MacDonald acquired title to the land, the option from Latinette, which belonged to Dexter, was still in force. In pursuance thereof, the title was transferred to MacDonald. This is the consideration which, on Dexter's part, supports the agreement whereby Dexter and MacDonald were each to have a one-half interest in the land. Plumb v. Cooper, 121 Mo. 675. (2) (a) It appears for the record that the land in controversy is in the State of Illinois. Defendants did not offer in evidence any statute of that State requiring declarations of trust with reference to lands to be in writing. The courts of this State do not take judicial notice of the statutes of Illinois, but presume that the common law is there in force. McPike v. McPike, 111 Mo. 226; Houghtaling v. Ball, 19 Mo. 84. (b) At common law, trusts in lands, or any other contracts with reference thereto, may be established by parol. Bispham, Equity Jurisprudence (6 Ed.), p. 99; 28 Am. Eng. Ency. Law (2 Ed.), 869; 4 Wigmore on Evidence, sec. 2454. (c) Contracts and transactions concerning land are governed by the law of the place where the land lies. Richardson v. DeGiverville, 107 Mo. 433; Depus v. Mayo, 11 Mo. 319. (3) Defendants, not having specifically raised the defense of the Statute of Frauds, cannot insist upon it here. R. S. 1899, sec. 864; Newverth v. Ingler, 83 Mo.App. 423; Royal Remedy Co. v. Gregory Grocer Co., 90 Mo.App. 57; Miller v. Harper, 63 Mo.App. 296; Vanidour v. Nelson, 60 Mo.App. 526; Scharff v. Klein, 29 Mo.App. 551; Condit v. Maxwell, 142 Mo. 276; Yoeman v. Mueller, 33 Mo.App. 347; Young & Branson v. Ledford, 99 Mo.App. 568; Steel v. Johnson, 96 Mo.App. 147. (4) There has been in this case such a performance as takes the agreement out of the Statute of Frauds. Hall v. Harris, 145 Mo. 615; Swon v. Stevens, 143 Mo. 384; Nowack v. Berger, 133 Mo. 24; Bless v. Jenkins, 129 Mo. 647; McConnell v. Brayner, 63 Mo. 461; Dickerson v. Chrissman, 28 Mo. 134; Farrar v. Patton, 20 Mo. 82. (5) The property in controversy was not bought to be held permanently as land, but to be used for the purposes of speculation for their joint benefit; therefore, it will be treated by a court of equity as personal property, and agreements with reference thereto by the parties to the joint venture are not within the Statute of Frauds. Morrill v. Colehour, 82 Ill. 618; Roby v. Colehour, 135 Ill. 300; Boone v. Clark, 129 Ill. 466; Van Housen v. Copeland, 180 Ill. 74; Tenney v. Simpson, 37 Kas. 363. (6) But the language employed in the writing is sufficient as a manifestation and proof of an express trust to satisfy the Statute of Frauds. Perry on Trusts (4 Ed.), sec. 82; Lane v. Ewing, 31 Mo. 75; Cornelius v. Smith, 55 Mo. 533; Hall v. Bank, 145 Mo. 418; Montague v. Hays, 10 Gray (76 Mass.) 609; Fisher v. Field (N.Y.), 10 Johns. 494; Hutchins v. Van Vetchen, 140 N.Y. 115; Denton v. McKenzie, 1 Dessaux (S. C. Ch.) 289; Reed v. Reed, 12 Rich. Eq. (S. C. Ch.) 213; Pratt v. Ayer (Wis.), 3 Chand. 265; Tenny v. Simpson, 37 Kas. 579; McLelland v. McLelland, 65 Me. 500; McCubin v. Cromwell's Exr., 7 Gillian 157; Brown's Admr. v. Combs, 29 N.J. 37; Barrell v. Joy, 16 Mass. 221; Lynch v. Rooney, 112 Cal. 279; Moore v. Pickett, 62 Ill. 160; Freer v. Lake, 115 Ill. 662; Urann v. Coates, 109 Mass. 581; Jones v. Davis, 48 N.J.Eq. 493; McArthur v. Gordon, 126 N.Y. 597; Maxwell v. Barringer, 110 N.C. 76; Roberts' Appeal, 92 Pa. 422; Packard v. Putnam, 57 N.H. 43; McCandless v. Warner, 26 W.Va. 754; Tichenvell v. Jackson, 26 W.Va. 460; Bride v. Paulk, 42 Me. 514; Blake v. Collins, 69 Me. 157; Morrill v. Colehour, 82 Ill. 618; Seymour v. Freer, 8 Wall. 202; Schaeffer v. Blair, 149 U.S. 248; Dale v. Hamilton, 2 Phill. (22 Eng. Ch. Cond.) 266. (7) Even if, under the agreement between plaintiff and MacDonald, plaintiff be construed as having an interest in the net profits only and not in the land, a court of equity will compel the sale of the land and a division of the profits. Morrill v. Colehour, 82 Ill. 618. But in cases similar to the one at bar, where the memorandum called only for an interest in the profits, a division in kind has been ordered by a court of equity. Tenney v. Simpson, 37 Kas. 579; Seymour v. Freer, 8 Wall. 202. (8) There being written evidence that MacDonald did not own the entire beneficial interest in the property, this was sufficient to open the door for parol evidence to explain the position of the parties and circumstances under which the writing was executed by MacDonald. 1 Perry on Trusts (Ed. 1889), sec. 82. (9) Defendants merely pleaded in general terms that the cause of action was barred by the Statute of Limitations. This is insufficient to enable them to rely on the statute as a defense. Murphy v. DeFrance, 105 Mo. 62; Hunter v. Hunter, 50 Mo. 452. However, the facts did not warrant such a plea. (10) (a) Defendants, in the court below, made no defense to the effect that the claim of plaintiff is stale or that plaintiff has been guilty of laches and, therefore, cannot make such defense here. R. S. 1899, sec. 864; Randolph v. Knox Co., 114 Mo. 142; St. Louis Brokerage Co. v. Bagnell, 76 Mo. 554; Schickle v. Watts, 94 Mo. 410. (b) Lapse of time is no bar to an express, open and continuing trust. Keeton v. Keeton, 20 Mo. 530; Ruby v. Barnett, 12 Mo. 3; Dillion's Admr's v. Base, 39 Mo. 292; Poe v. Dominick, 54 Mo. 127; Goodwin v. Goodwin, 69 Mo. 617.
Hickman P. Rodgers for appellants in reply.
Of and concerning the cases cited in respondent's brief to the effect that laches must be pleaded, appellants beg leave to show the court that Randolph v. Knox Co., 114 Mo. 142, and St. L. Brokerage Co. v. Bagnell, 76 Mo. 554, in no manner tend to sustain the point, and have no application to this, an equity case; and that Schickle v. Watts, 94 Mo. 410, was expressly overruled in Humphreys v. Atlantic Milling Co., 98 Mo. 552. Sheridan v. Nation, 159 Mo. 27.
This cause is brought here by appeal from a decree and judgment of the St. Louis City Circuit Court. It is unnecessary to reproduce the pleadings upon which this judgment rests; it will suffice to say that this 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, Illinois, and which addition is a suburb of 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:
No. 721 Pine Street.
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 three thousand dollars. Plaintiff in this proceeding, in the negotiation of this contract paid one hundred dollars 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 forty acres of ground, agreed to sell same to...
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Landers v. Schneider
...to have been embraced in the written assignment thereof, and in the written consent thereto executed by plaintiff's decedent. Dexter v. MackDonald, 196 Mo. 373. J. Robertson, P. J., and Sturgis, J., concur. OPINION FARRINGTON, J. --This case was tried on an amended petition filed by the adm......