Hillman v. Allen

• Decision Date: 17 October 1898
• Parties: HILLMAN et al. v. ALLEN et al.
• Court: Missouri Supreme Court

47 S.W. 509

145 Mo. 638

HILLMAN et al. v. ALLEN et al.

Supreme Court of Missouri, Division No. 2.

October 17, 1898.

STATUTE OF FRAUDS — EXPRESS TRUST.

1. The statute of frauds is available under answer merely denying the agreement set up in the petition.

2. The agreement made at time of a conveyance of land that the grantee should pay off incumbrances thereon, and should reconvey on the grantor repaying him the money so advanced, creates an express trust, which Rev. St. 1889, § 5184, declares shall be in writing.

Appeal from circuit court, Harrison county; P. C. Stepp, Judge.

Action by T. P. Hillman and others against Isaac N. Allen and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

D. J. Heaston and Sallee & Goodman, for appellants. J. C. Wilson and McCullough, Peery & Lyons, for respondents.

GANTT, P. J.

This is an appeal from a judgment in favor of defendants. Upon a ruling of the circuit court rejecting certain evidence tendered by the plaintiffs, the plaintiffs took a nonsuit, with leave to move to set aside. In due time they moved the court to set aside the nonsuit, and, the court declining to do so, appealed to this court.

The plaintiffs are heirs at law of Stephen C. Allen, and the defendant Isaac N. Allen is a son of Stephen Allen, and the other defendants are minors and heirs at law of Stephen Allen, deceased. The petition alleges: "That prior to the 5th day of March, 1887, said Stephen C. Allen was the owner in fee simple and in possession of the following described real estate, to wit: The west half of lot seven (7) in block three (3), and sixty feet off the east end of lot seven (7) in block seven (7), all in first official survey of the city of Bethany, in Harrison county, state of Missouri. That on said 5th day of March, 1887, said Stephen C. Allen, deceased, and the defendant Isaac N. Allen, made an agreement by which said S. C. Allen was to convey said lots to Isaac N. Allen, and said Isaac N. Allen was to pay off an incumbrance of about four hundred dollars that was against said lots, and, when said Stephen C. Allen paid him back the amount he paid out on said indebtedness, said Isaac N. Allen was to convey said lots back to said Stephen C. Allen. Thereupon, and in pursuance of said agreement, and not otherwise, said Stephen C. Allen conveyed said lots to said Isaac N. Allen, by a warranty deed, for the expressed consideration of $850, but in fact no further or other consideration was paid or passed between said parties, but it was the understanding and agreement that said deed and conveyance was to be and operate only as a mortgage to secure said Isaac N. Allen for the amount he should pay out to release said land from liens and incumbrances then against it. That on the 11th day of April, 1889, and for a long time prior thereto, said Stephen C. Allen was the owner in fee simple and in possession of lot one (1) in block two (2) in the first survey of said city of Bethany, and at that date there was an incumbrance against it of about sixty-five dollars. That on said 11th day of April, 1889, said Isaac N. Allen, by overpersuasion and misrepresentation, induced said Stephen C. Allen to convey to him said lot one (1), upon the express understanding and agreement that said Isaac N. Allen was to pay off and redeem said lot from said incumbrance, and to hold said lot as security for the amount so paid out until said Stephen C. Allen should pay the amount so advanced back to him, said Isaac. Plaintiffs further state that on the 23d day of December, 1889, said Isaac N. Allen sold and conveyed the west half of lot seven (7) in block three (3) to F. T. Harvey, for the sum of eleven hundred dollars, and thereby said Isaac N. Allen received and realized an amount of money several hundred dollars in excess of all that he ever paid out or advanced on all of said lots and for all he paid out and advanced or incurred on account of said S. C. Allen; and plaintiffs therefore aver that said Isaac N. Allen, under his said agreements and contracts with said Stephen C. Allen, has no other or further claims against said lot one (1), block two (2), and said part of lot seven (7), block seven (7)." The prayer of the petition is: "That said Isaac N. Allen be declared a trustee holding said lots for the benefit of the heirs aforesaid of said Stephen C. Allen, deceased; and that he be required to make an accounting of the amount of money paid out by him on account of Stephen C. Allen, deceased, that would be justly charged against said real estate, and all sums of money realized by him from sale of any part of said lots, and from rents and profits thereof; and that said lots * * * be ordered to be sold, and the proceeds resulting therefrom be ordered to be divided among the heirs of said Stephen C. Allen, deceased, according to their respective rights as hereinbefore stated." The answer of the defendants denied the contract or agreement set up in plaintiffs' petition, and pleaded affirmatively that he took the property from his father by purchase, and that he paid him full and fair value for the same, and alleged with particularity the amounts so paid him. The contention of appellants upon this appeal is that the court committed reversible error in excluding parol evidence of the alleged agreement made between the defendant Isaac N. Allen and his father, Stephen C. Allen. It is admitted by counsel for plaintiffs in their statement and brief, substantially, that this is a suit to declare and enforce a trust, which, it is claimed, was established and created by a parol agreement between the defendant Isaac N. Allen and his father. As above indicated, the sole error relied...