Hudson v. Cahoon

• Decision Date: 22 February 1906
• Parties: HUDSON v. CAHOON, Appellant
• Court: Missouri Supreme Court

91 S.W. 72

193 Mo. 547

HUDSON v. CAHOON, Appellant

Supreme Court of Missouri, Division One

February 22, 1906

Appeal from Madison Circuit Court. -- Hon. Samuel Davis, Special Judge.

Reversed and remanded.

Moses Whybark, Robert A. Anthony and David M. Tesreau for appellant.

Plaintiff's action, be it legal or equitable, is, as to the Statute of Limitations, governed by the five-year limit, i. e., by the fifth subdivision of section 4273, R. S. 1899; that is the only statute which would entitle respondent in any event to any relief; the petition after alleging the recording of Hudson's deed to Cahoon on August 27, 1892, and Cahoon's deed to Parks of November 24, 1892, is barred on its face because such allegations were and are a complete discovery on and from said dates to plaintiff of every fact he alleges. And, further, the reservation of minerals, etc and right of way in the land had no effect on plaintiff's action because it was not known, nor is it alleged in the petition that any minerals, etc., are in that ground now. Further, the right of plaintiff to recover for any profits Cahoon derived from his sale to Parks was and is not an express trust such as are alone cognizable in equity, to which only the third subdivision of Revised Statutes 1899 section 4277, applies. Keeton v. Keeton, 20 Mo. 530; Landis v. Saxton, 105 Mo. 490; Newton v Rebenack, 90 Mo.App. 660. We further contend that Hunter v. Hunter, 50 Mo. 445, on which respondent relies, was attempted to be based on the ten-year-limit in the third sub-division of section 4272, Revised Statutes 1899; that that section does not apply even to that case, much less to this case, and that as an authority it is criticised and practically overruled by Rogers v. Brown, 61 Mo. 194. Hughes v. Littrell, 75 Mo. 573.

Wm. D. Hudson and E. D. Anthony for respondent.

(1) An action to establish a trust growing out of lands, or to recover the proceeds of a re-sale of lands held under a constructive resulting trust, ought to be governed by the same rules as to length of time necessary to set aside a fraudulent conveyance and recover possession of land. Hunter v. Hunter, 50 Mo. 450; Rogers v. Brown, 61 Mo. 191; Zoll v. Carnahan, 83 Mo. 41; Life Ins. Co. v. Smith, 117 Mo. 296. (2) Where one occupies a fiduciary relation towards the owner of land, all gains acquired by him by means of his position, whether through conveyance to him of an adverse interest, or otherwise, belongs to such owner, whether in land or in money. Life Ins. Co. v. Smith, 117 Mo. 294. (3) The relation of client and attorney is one of especial trust and confidence in the attorney. Davis v. Klein, 96 Mo. 401; Eoff v. Irvine, 108 Mo. 378; Aultman, Miller & Co. v. Lorring, 76 Mo.App. 66. (4) A reservation of mineral and mining rights is construed as an actual grant thereof. Coal and other minerals in place are land, and may be conveyed as such, and, when thus conveyed, constitute a separate and distinct inheritance. Wardell v. Watson, 93 Mo. 107; Kirk v. Mattier, 140 Mo. 31; Manning v. Coal Co., 181 Mo. 377. (5) The courts have cited and affirmed Hunter v. Hunter, 50 Mo. 445, in the following and other cases: Lewis v. Schwenn, 93 Mo. 31; Burdett v. May, 100 Mo. 20; Sherwood v. Baker, 105 Mo. 478; Newton v. Rebenack, 90 Mo.App. 660.

OPINION

MARSHALL, J.

This is an action to divest out of defendant, and vest in the plaintiff, the right and title to all the mineral, marble and granite on or under a certain tract of land in Madison county, in the State of Missouri, together with a right of ingress and egress from the same to mine and work said land, and to recover $ 584.55 profits, alleged to have been received by the defendant while acting as the agent of the plaintiff in respect to said land. There was no motion for new trial or bill of exceptions filed so far as is disclosed by the record here, and therefore the case stands for adjudication, in this court, upon the record proper.

On the 20th of February, 1902, the plaintiff instituted this suit. The petition (omitting caption) is as follows:

"Now comes plaintiff, and by leave of court first had files his amended petition and for his cause of action states that on the 6th day of June, 1892, and for a long time prior thereto, he was the owner of a certain tract of land, situated in the county of Madison and State of Missouri, and described as follows, towit:

"All the land formerly owned by William A. Hudson in the Peter Burn's survey numbered 3171, and in the William Dillon survey numbered 3125, which lies south and east of Mill creek and the prongs there, which is to include. [Here follows a discription of 56.3 acres, together with a lane, 16 and one-half feet wide leading thereto.]

"That on said 6th day of June, 1892, and for several years prior thereto, defendant was the agent of plaintiff for the management and sale of said land. That during all of said periods, plaintiff was a resident of the city of St. Louis, Missouri, and defendant was a resident of said county of Madison. That on, towit, about the 26th day of May, 1892, defendant, while acting as said agent of plaintiff, represented to plaintiff that he thought he could sell forty acres of the aforesaid land for the sum of one hundred and fifty dollars and requested plaintiff to execute and return to defendant a blank deed to all of said land, which said blank deed was forwarded by defendant to plaintiff at said time, with the name of the grantee being left blank in said deed. That plaintiff, being wholly ignorant of the value of said land and relying wholly upon defendant, his agent, in said transaction, did on the 6th day of June, 1892, execute said blank deed to said land, the name of the grantee being left blank in said deed, and forwarded said deed to defendant.

"That thereafter, defendant, without the knowledge or consent of plaintiff, and with the fraudulent design of obtaining plaintiff's said land at a sum far below its value, did fraudulently cause his (defendant's) own name to be inserted as grantee in said blank deed, and thereafter caused said deed to be recorded on the 27th day of August, 1892, in book 17, at page 475, in the office of the recorder of said Madison county, Missouri. That the consideration named in said deed was one hundred and eighty dollars and that, to-wit, on or about the 17th day of November, 1892, defendant paid to plaintiff the sum of one hundred sixty-five dollars, being the aforesaid consideration named in said deed less the sum of fifteen dollars, which said sum defendant deducted for services in making said deed and for paying the taxes on said land. That said land, during all said times, was worth much more than said sum of one hundred and eighty dollars, which fact was well known to defendant.

"That on, to-wit, about the 24th day of November, 1892, defendant, by deed, conveyed all agricultural and timber rights, interests and values with possessory rights in and to said above-described land to one William Parks of said Madison county for the sum of $ 764.55. Wherefore defendant became indebted to plaintiff in the sum of $ 584.55, as agent and trustee of plaintiff, said sum being the profit realized by defendant by the sale of said land to Parks as aforesaid. That defendant refused and still refuses to account to plaintiff for said sum.

"That in said deed from defendant to said Parks, defendant reserved to himself the right and title to all mineral of every nature and marble and granite in, on or under said above-described land, together with the right of ingress and egress from the same to mine and work said land.

"That defendant has at all times concealed from plaintiff the fact that he inserted his (defendant's) name as grantee in said deed, as aforesaid, and has like-wise concealed from plaintiff the fact that defendant sold said land to said Parks as aforesaid, and plaintiff states that these facts came to his knowledge for the first time on the -- day of April, 1901.

"Wherefore, plaintiff prays judgment against the defendant for said sum of five hundred and eighty four dollars, together with interest thereon at the rate of six per cent per annum from said 24th day of November, 1892; that defendant be ordered to re-convey to plaintiff all the title and interest in said land reserved as aforesaid by defendant in his said deed to said Parks, and the plaintiff be granted a decree divesting all said title and interest out of defendant and vesting the same in plaintiff; that the defendant be ordered to give a full and complete accounting to plaintiff of his trust in managing and selling said land as agent of plaintiff, for his costs herein, and for such further relief as to the court may seem just and proper."

The defendant demurred to the petition, and the demurrer being overruled, he answered over. The answer is a general denial of all allegations not expressly admitted. It then admits that on the 6th of June, 1892, the plaintiff owned the surface, timber and agricultural rights in and to the lands described in the petition, and the right of ingress and egress; that, on said date, the plaintiff acknowledged a deed to said land, leaving the name of the grantee blank, for a consideration of one hundred and eighty dollars, and that the defendant filled in his name as grantee, and caused the deed to be filed for record in Madison county, on the 27th of August, 1892, but denies that he thereby defrauded or attempted to defraud the plaintiff; admits that the consideration named in the deed was one hundred and eighty dollars, which he alleges he paid as follows: cash to the plaintiff one hundred and thirty-one dollars and thirty-five cents; services to the defendant for making the deed and for payment of taxes, fifteen dollars; thirty-three...