Dougherty v. Adkins

• Citation: 81 Mo. 411
• Parties: DOUGHERTY v. ADKINS, Appellant.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

81 Mo. 411

DOUGHERTY

v.ADKINS, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

Henry Smith for appellant.

This suit is a proceeding by bill in equity, praying that the title to certain lots, conveyed to defendant by a sheriff's deed, and, also, by a trustee's deed, be vested in plaintiff, and that defendant be required to account for rents received by him thereon. It was error, therefore, in the court to enter up a common law judgment for $537.23, and award against defendant a general execution. The bill does not deny that the money paid by defendant for the lots was his own. The money being his own, there cannot be a resulting trust to plaintiff or any one. The bill does not state facts sufficient to constitute a cause of action. 1. It is not alleged that the lots were bought with the money of the beneficiaries in the chattel mortgage, and there is no other allegation that would create an implied or resulting trust. 2. Where a trustee purchases in the name of a third person with trust funds, the resulting trust will not be to himself, but to his cestui que trust. Kelly v. Johnson, 28 Mo. 249, 252; Russell v. Allen, 10 Paige 249. 3. The bill does not show any right to plaintiff to sue defendant. 4. It does not show that a common law action would be unavailing and insufficient.Samuel Hardwicke and James M. Sandusky for respondent.

The judgment was authorized by the pleadings and the evidence. “When a court of equity obtains jurisdiction of a cause, it will retain the same to do full and complete justice between both parties; it will, as far as possible, prevent multiplicity of actions, and will not turn a party out of court where his rights may be adjusted and determined without that measure.” Corby v. Bean, 44 Mo. 381. “It will not content itself in this regard by any half way measures; it will not declare that a party has been defrauded of his rights, and then dismiss him with a bland permission to assert, at new cost and further delay, those rights in another forum.” Real Est. Savings Inst. v. Collonius, 63 Mo. 295, and cases cited. The petition states a cause of action. The appeal is frivolous, and judgment should be affirmed with ten per cent damages. Estey v. Post, 76 Mo. 411.

EWING, C.

The plaintiff commenced suit by filing the following petition:

“Plaintiff states that heretofore, to-wit, on the 18th day of June, A. D., 1875, one James G. Adkins executed and delivered unto Lewis B. Dougherty, plaintiff in the above entitled cause, his certain deed of trust, dated the day and year aforesaid, and filed in the office of the recorder of deeds, on said day and year aforesaid, by which he granted, bargained and sold, aliened, transferred, and conveyed unto said Lewis B. Dougherty a large quantity of goods and chattels of great value, to-wit, of about the value of $_______ a full and particular description of which will be found in said deed of trust, recorded in book one (1) at page 72, of the chattel records in and for said Clay county; that said conveyance was made to said Dougherty in trust for the following uses and purposes, to-wit: To indemnify one Abram T. Litchfield, Darwin J. Adkins. Lewis B. Dougherty, William G. Garth and Robert S. Adkins, as sureties for the said James G. Adkins on a certain promissory note executed by him and by them to The Commercial Savings Bank of Liberty, Mo., for the sum of $2,500 dated May 15th, 1875; and to indemnify one James M. Keller and Robert S. Adkins, as sureties for the said James G. Adkins on a note executed by him and by them to said bank for the sum of $2,046.54, dated November 11th, 1869; and to secure the indebtedness of James G. Adkins to said bank for the sum of $3,540, as a member of the copartnership of Blakemore, Harper & Co., on a note executed by said firm to said bank for said sum, dated March 8th, 1873; and to secure the indebtedness of the said James G. Adkins, to said bank for the sum of $510, evidenced by his note for said sum, dated September 7th, 1874; and to secure divers other claims in favor of said Bank and against said James G. Adkins, as will more fully appear by reference to said deed of trust aforesaid.

Plaintiff states that by agreement between said James G. Adkins and the said Lewis Dougherty, trustee, as aforesaid, the said James G. Adkins was to sell said goods and chattels and turn the proceeds over to said trustee, to be applied by said trustee on the said claims hereinbefore stated, and toward the liquidation of the same; that in pursuance of said agreement, the said James G. Adkins proceeded to sell and did sell large quantities of said goods and chattels, and turned the proceeds thereof over to said trustee, to be applied on said claims aforesaid, except a certain note for the sum of $351.75, dated July 15th, 1875, due thirty days after date, executed by one Michael Knight and Patrick Dennen to said Jas. G. Adkins, which said note was executed by said Michael Knight in consideration of certain of said trust goods and chattels sold by said James G. Adkins to said Knight.

Plaintiff states that on the 19th day of January, 1876, said James G. Adkins indorsed, transferred and delivered said note to said Robert S. Adkins, for the purpose of collecting said note and turning the proceeds thereof over to said Dougherty, trustee, as aforesaid, to be applied by him in liquidation of the said claims secured by said deed of trust aforesaid. Plaintiff states that at the September term, 1876, the said Robert S. Adkins instituted suit in the circuit court of Clay county, Missouri,...