Dohmen v. Schlief

• Decision Date: 10 February 1904
• Parties: DOHMEN v. SCHLIEF et al.
• Court: Missouri Supreme Court

78 S.W. 799

179 Mo. 593

DOHMEN v. SCHLIEF et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

CONTRACTS—TRUSTS—CONSTRUCTION — ACTION —EVIDENCE—DEED—DELIVERY—NECESSITY.

1. A contract whereby one agreed, in consideration of a transfer of money to him by the other party, to pay the other party a certain sum monthly during the other's life, and on his death to pay the sum transferred to designated persons, was a mere personal obligation, and there was no trust created.

2. In an action on a contract alleged to have been made by defendant, a deed executed by defendant, reciting the contract, and creating a trust for performance of the contract, was of no effect; it not having been delivered, but having remained in defendant's possession.

3. Where a deed, reciting the execution of a contract by the grantor, for failure to deliver, is not binding on the grantor, the statements in the deed are of no force or effect.

Appeal from Circuit Court, Osage County; Jno. W. McElhinney, Judge.

Action by Ludwig Dohmen against Albert Schlief and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

Ryors & Vosholl, for appellant. Pope & Vaughan, for respondents.

MARSHALL, J.

This is an action for an accounting, wherein the petition alleges that there is due the plaintiff the sum of $7,069.44. There was a judgment for the defendants, and the plaintiff appealed.

The facts are as follows: The plaintiff is a very old man, being considerably over 80 years of age. On the 20th of September. 1882, and for many years prior thereto, he had lived with his brother-in-law C. W. Holtschneider and his wife, a sister of the plaintiff. He had notes executed to him by said Holtschneider which aggregated, to wit, $4,457. Being desirous of securing a permanent home with his said relatives, he, on the day stated, entered into a written agreement with his said brother-in-law whereby it was agreed that he would deliver up to his said brother-in-law and his said wife, Regina, said notes, in consideration of which he (said brother-in-law) agreed to pay plaintiff during his natural life the sum of $30 per month, of which $10 was to be applied to the payment of the board and lodging of plaintiff in his brother-in-law's house as long as plaintiff continued to live at his house, and at plaintiff's death the said brother-in-law was to pay the principal represented by said notes as follows: To Mary Porth, daughter of Regina Holtschneider, the sum of $1,000; to Jennie Reilly, daughter of said Regina, the sum of $1,000; to Ludwig Reilly, son of said Jennie Reilly, the sum of $200; to Henrietta Schlief, daughter of said Regina, the sum of $1,200; and the remainder to said Regina. It is alleged in the petition that Regina signed this agreement, but this is expressly denied in the answers, and there is no competent evidence in the record that she ever did so. The petition alleges that in this way a trust fund was created, and that said C. W. Holtschneider and Regina became thereby trustees, and it is contended that they thereby charged their real estate with said trust. But as Regina did not sign said agreement, and did not at that time own any real estate, it cannot be successfully contended that she so created any trust, either personal to herself, or as to any real estate. It is also plain that there was no trust created by said C. W. Holtschneider that would attach to his real estate, but that it was a simple contract to board and lodge plaintiff, and to pay him a certain sum per month for life, and after his death to pay the principal sum to the persons named, which contract was in no proper sense a personal trust, but was a plain personal obligation to pay money and furnish board and lodging. Thereafter the plaintiff continued to reside with C. W. Holtschneider, but how long the evidence does not disclose. It was shown, however, that he has received, in all, from C. W. Holtschneider, Regina, and the executors of the wills of their estates, only the sum of $250 in money. C. W. Holtschneider died testate on May 13, 1883, leaving certain real estate in St. Louis to his daughter Jennie Reilly, and the balance of his estate in Osage, Maries, Miller, and Cole counties, and in the city of St. Louis, to his wife, Regina; but the will expressly states that he is unable to give a particular description of it,...