Gobin v. Hudgens

• Citation: 15 Mo. 400
• Parties: GOBIN v. HUDGENS.
• Decision Date: 31 January 1852
• Court: United States State Supreme Court of Missouri

15 Mo. 400

GOBIN

v.HUDGENS.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM LIVINGSTON CIRCUIT COURT.

HAYDEN, for Appellants. 1. The deed of the first of February, 1847, from William Gobin, to the appellant, vested in him, the said Levi Gobin, the right and title to the slaves in controversy; and his title thus acquired is not affected, or in any degree divested by reason of the condition annexed to this conveyance as expressed in the deed. Because the condition is repugnant to the conveyance, and therefore inoperative and void. 2 Cruise's Digest, p. 5, §§ 20, 21; 1 Bac. Abr. 648, 649; 4 Kent's Com. 130, 131, 468. If, however, this deed shall be constituted by this court to be a deed of trust, as contended for by the counsel for the appellee, even then the plaintiff, as trustee, thereby acquired the legal title or right to the possession of the slaves as against the said William Gobin and his alienee, the defendant in this suit, from the time of the date of the deed, and therefore he has a right, either as absolute owner or as trustee of the slaves, to maintain the present action. 2. If the court shall determine that the deed of the first of February, 1847, created the relation of trustee, and cestui que trust between the appellant and the said William Gobin, with reference to the slaves in controversy, still the existence of such relation between them does not render the deed of the 10th of February, 1847, from the said William to the appellant, void; but, on the contrary, the utmost extent to which a court of equity would go, would be to pronounce the deed voidable, and not void, if appealed to by the cestui que trust, to set the same aside upon a proper state of facts set forth in his bill, showing that there was fraud, concealment, or some advantage taken of him by the appellant, by reason of some information acquired by him as trustee in regard to trust property. 9 Ves. 246; 12 Ves. 373; 2 B. Mon. 77; 1 Mad. Ch. R. 113, and authorities referred to; 1 Story's Eq., §§ 321, 322. 3. The defendant, by his purchase in January, 1849, acquired no title to the slaves, as against the plaintiff, who is the prior purchaser of the property for a valuable consideration. His deeds of conveyance have been acquiesced in, and not questioned by the said William Gobin; nor is their validity arraigned by the defendant in his answer. The defendant, in his answer, does not deny, and therefore he admits that the plaintiff is the purchaser of the slaves, as stated in his petition; nor does he pretend that he is a purchaser of the property for a valuable consideration, and without knowledge or notice of the prior purchase, &c., by the plaintiff; so that he does not make out a case in his answer, either upon legal or equitable grounds, showing a right in him to hold the possession of the slaves. That, although the bill of exceptions does not show all the evidence in the cause, yet this court will not presume that evidence was given upon the trial to prove facts not set up in the answer or presented by the issue in the cause.

ABELL & STRINGFELLOW, for Respondent. 1. It is so palpable that this record shows no error in the refusal of the three instructions asked by the plaintiff, that no further notice need be taken of the matter. 2. The principal instrument in the cause--that under which both parties claimed--was a voluntary deed of settlement of the slaves in controversy, and other property, vesting the legal title to it in the plaintiff, but in trust for the grantor and his children, as provided in the instrument of settlement. The reservation of the services of the slave in controversy to the grantor for his natural life, whether considered as a legal estate in him for life, or a trust estate for the same period, gave him a right, either at law or in equity, to the possession of the slave during his life; and of course the right of disposing of that interest; and here under our present code of procedure, either title authorized the defendant's first instruction. 3. The rule of equity is, that the trustee cannot buy the trust property from the cestui que trust. Davin v. Fawning, 2 Johns. Ch. R. 252, and cases therein cited; Whichcole v. Lawrence, 3 Ves. jr., 750. 4. The propriety or impropriety of the instructions given or refused in this case was not properly raised in the Circuit Court, and cannot now be raised in the court by the appellant upon this record. This was a trial of the fact by the court. The duty of the court was to find the facts, and afterwards to declare the conclusions of law arising upon these facts. Upon this trial it was competent for either party to object to the competency or relevancy of the evidence, and except to any opinion of the court upon such questions; but it was not the duty...