Hedges v. McKittrick

• Decision Date: 08 July 1941
• Docket Number: No. 25722.,25722.
• Citation: 153 S.W.2d 790
• Parties: HEDGES et al. v. McKITTRICK, Atty. Gen. (BLAYNEY et al., Interveners).
• Court: Missouri Court of Appeals

153 S.W.2d 790

HEDGES et al. v. McKITTRICK, Atty. Gen. (BLAYNEY et al., Interveners).

No. 25722.

St. Louis Court of Appeals. Missouri.

July 8, 1941.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Suit by Isaac A. Hedges and others, as trustees, against Roy McKittrick, Attorney General, for authorization for the conveyance of property held in trust and for certain other relief, wherein J. M. Blayney and others intervened. From an adverse decree, interveners appeal.

Affirmed.

Eliot, Blayney & Bedal, of St. Louis, for appellants.

H. A. & C. R. Hamilton and Charles F. Hamilton, all of St. Louis, for respondents.

McCULLEN, Judge.

This suit was instituted in the Circuit Court of the City of St. Louis by plaintiffs, respondents, hereinafter referred to as plaintiffs, on January 12, 1939, against Roy McKittrick, Attorney General of the State of Missouri, as defendant (a charitable trust being involved), praying the court to enter its decree authorizing and directing plaintiffs, as trustees, to convey to the St. Louis Women's Christian Association, a corporation, certain property described in an instrument of trust set forth in plaintiffs' petition, and for other relief which will be referred to later, to which petition of plaintiffs the defendant Attorney General of Missouri filed a general denial.

On December 1, 1939, by leave of court, J. M. Blayney, William S. Bedal, Harold S. Cook and Rodney M. Fairfield, attorneys at law and members of a law partnership known as Eliot, Blayney & Bedal, hereinafter called intervenors, filed their intervening petition wherein they prayed that, before entering any such decree as prayed for by plaintiffs, the court require plaintiffs to pay to intervenors the sum of $750, representing fees for attorneys' services allowed and provided for in two orders of the circuit court in a prior suit involving the same property as that involved in the instant suit, or, in the alternative, to provide in any decree entered in the present suit that before making any conveyance of the real estate mentioned herein, plaintiffs be required to pay intervenors said sum of $750. Intervenors alleged in their petition that said two court orders for allowances of fees for services became, in effect, a lien upon any proceeds received from the sale of said property; and that it would be unjust and inequitable for the court to empower plaintiffs, as said trustees, to give the real estate away and thereby deprive intervenors of the rights to which they are entitled under the two said court orders.

Plaintiffs filed an answer to the petition of intervenors, alleging that intervenors have no right, interest or claim in and to the object and purpose of this suit, or to any of the relief sought by plaintiffs herein, or to the subject matter thereof, and have no right, interest or claim that can be affected by the decree herein; and that intervenors seek to inject herein an issue between plaintiffs and intervenors independent of the issues between plaintiffs and defendant. Plaintiffs further averred that intervenors' alleged cause of action is barred by Sections 886 and 862, R.S.Mo.1929, Mo.St. Ann. §§ 886, 862, pp. 1143, 1168, and prayed for the dismissal of the petition of intervenors.

The intervening petition was submitted to the court on an agreed statement of facts by plaintiffs and intervenors. No oral testimony was introduced in connection with the intervening petition. Some testimony was submitted on the main case.

At the trial plaintiffs objected to the introduction of any evidence on behalf of intervenors.

The court rendered a decree granting the relief prayed for in the petition of plaintiffs. It also found the issues on the intervening petition in favor of plaintiffs and against intervenors, and dismissed intervenors' petition. The motion of intervenors for a new trial having been overruled, they duly appealed to this court.

Plaintiffs are successor trustees under a deed made on February 24, 1876, by Elizabeth A. Matthews and James E. Ashbrook and Mary T. Ashbrook, his wife, conveying certain real property situated on Washington Avenue just west of Eighteenth Street in the City of St. Louis, Missouri, fully described in plaintiffs' petition, in trust for the purpose of establishing and maintaining "a home for the benefit of deserving women of good character who by reason of straitened circumstances or sickness or friendless condition said trustees shall judge to be suitable persons to receive the benefit of said charity * * *."

Under the terms of the aforesaid deed, the trustees were empowered to sell the property whenever they should judge a sale to be expedient for the purposes of the trust. They were prohibited by said deed from using the proceeds of a sale for any purpose other than the purchase of other lands to be held by them upon like trust. About the date of the original deed, a building was erected on said property and was leased by plaintiffs to the St. Louis Women's Christian Association, a corporation, to be used for the public and charitable purposes contemplated in the original deed. Said corporation operated the building for many years. On June 3, 1925, an action was brought in the Circuit Court of the City of St. Louis, being Cause No. 90984-B, by the parties who were then trustees under the original deed against the then Attorney General of Missouri, which action had for its purpose the obtaining of a decree authorizing said trustees to sell the Washington Avenue property. The intervenors herein were the attorneys for plaintiffs in that action. In said action a decree was rendered dated October 8, 1925, which was thereafter modified on June 19, 1926, authorizing the sale of the property by the trustees for not less than $75,000, the time and place of the sale to be determined by the trustees in their discretion, the proceeds thereof to be paid to the St. Louis Women's Christian Association upon trust, to be used for the erection of a building to be known as the St. Louis Women's Christian Home, to be operated for the same charitable uses as provided in the original deed. The modification of the decree made on June 19, 1926, provided that the proceeds of the sale should not be paid to the St. Louis Women's Christian Association until certain mortgages or deeds of trust on the particular real estate whereon it was intended that the new Women's Christian Home should be erected were fully paid off. The court also retained jurisdiction of the cause.

In said proceeding on October 8, 1925, on application of the predecessors of intervenors, the court made and entered an order as follows: "Now at this day comes Messrs. Eliot, Blayney, Bedal and Eliot and present to the Court their notice and motion for allowance for services as attorneys for plaintiffs; and the Court having seen and examined said motion, as well as the proof adduced in support thereof, doth order that the same be sustained and doth order that the petitioners be and they are hereby allowed the sum of $500.00 for their services as attorneys for plaintiffs and that said allowance be paid out of the proceeds of the sale of land ordered sold by the decree this day entered in this cause."

On November 19, 1926, in the same cause, the court made a second order as follows: "The Court having heard and duly considered the notice and motion of William C. Eliot, attorney for plaintiffs, for an additional allowance for attorney's fees, heretofore filed, and submitted herein, doth order that said motion be and the same is hereby sustained. Thereupon, it is ordered by the Court that said William C. Eliot be and he is hereby allowed an additional fee of $250.00, said sum to be paid to him out of the proceeds of the sale of real estate involved in this action."

The two circuit court orders above set forth constitute the basis of intervenors' petition in the present suit.

It is agreed that intervenors herein have succeeded to all the right, title and interest of the firm of Eliot, Blayney, Bedal & Eliot and of William C. Eliot personally in and to the allowances made in the two above-mentioned court orders, and that no part of said allowances has been paid by plaintiffs nor received by intervenors or their predecessors. It is also agreed that the real property was never sold under the decree of October 8, 1925, as modified by the decree of June 19, 1926, and that it is still held by plaintiffs herein as trustees.

The petition of plaintiffs in the instant suit alleged and the court found that the Washington Avenue property had never been sold under the decree made in 1925; that thereafter the building had been removed because it was obsolete; that said property is now being rented as a parking lot; that the St. Louis Women's Christian Association had erected a building with its own funds and is conducting it under the name of Women's Christian Home for the same charitable purposes contemplated by the original deed, and that such building is now free of debt; that the Washington Avenue property has greatly depreciated in value and could not be used for the purposes contemplated in the original deed; that plaintiff trustees are prohibited from mortgaging or incumbering said property; that plaintiffs have no money with which to pay the taxes accruing thereon; that the annual receipts from rents are approximately $600, while the annual taxes on said property exceeded the sum of $800; that the assessed valuation of said land for taxing purposes at the time of trial was $29,230; that plaintiffs have no funds whatsoever, and that the Women's Christion Home has been providing funds to pay the taxes on the property to prevent a sale thereof for delinquent taxes; that, unless said relief be granted by the court, the property might become incumbered by the lien of taxes contrary to the express provisions of the trust, and might be foreclosed under tax liens and the purpose of the...