Janssen v. Christian

• Decision Date: 07 March 1933
• Docket Number: No. 22164.,22164.
• Parties: JANSSEN et al. v. CHRISTIAN.
• Court: Missouri Court of Appeals

57 S.W.2d 692

JANSSEN et al. v. CHRISTIAN.

No. 22164.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Rehearing Denied March 21, 1933.

Appeal from St. Louis Circuit Court; A. H. Rosskopf, Judge.

"Not to be published in State Reports."

Action by George A. Janssen and another against Viola M. Christian. Judgment for plaintiffs, and defendant appeals.

Affirmed.

George E. Mix, of St. Louis, and Wurdeman & Hoester, of Clayton, for appellant.

Erwin F. Vetter, of St. Louis, for respondents.

BECKER, Presiding Judge.

Plaintiffs below prevailed in their action in equity to establish a constructive trust ex maleficio upon certain real estate situated in the city of St. Louis, Mo., and the defendant in due course appeals.

The plaintiffs, George A. Janssen and A. Herman Janssen, and the defendant, Viola M. Christian, are brothers and sister, sons and daughter of John H. Janssen, a widower, who died March 1, 1930, then 77 years of age. They were Janssen's only children, and seemingly shared his affection equally.

In the fall of 1929, John H. Janssen became seriously ill and spent some weeks in a hospital. About the middle of December of that year, he was removed from the hospital to the home of his daughter, the defendant, Viola M. Christian, where he remained until he died.

Plaintiffs' second amended petition alleges that while the father was living in the home of the defendant, and while in a weakened and devitalized condition, he did, on the 27th day of January, deed to the daughter, Viola M. Christian, for a nominal consideration, a ten-room brick building known as 4512 Newberry terrace, in St. Louis, valued at about $7,000. Simultaneously with the signing of this deed, Janssen had made provision for the preparation of his will. It is not disputed but that the decedent's estate approximated $9,000, and the petition alleges that it was the purpose and intention of the testator to devise his estate so that his children would share as nearly equal as possible.

Under the terms of the father's will each of the plaintiffs was to receive the sum of $3,000; and it is alleged that, at the time the father executed the deed to his daughter and subscribed his will, the scrivener asked him, in the presence of his daughter, Viola M. Christian, whether he had the $6,000 with which to pay the two $3,000 bequests to his sons, George and Herman; that Janssen replied that, if there was not sufficient money at his death with which to pay the two $3,000 bequests, the difference would be paid to his sons by his daughter, Viola. The petition then alleges that "she did then and there consent and agree to pay such difference, and that induced thereby and pursuant to said agreement said John H. Janssen did deliver said deed to the said Viola M. Christian and convey said property to her and did at the same time execute his last will and testament. * * *" The petition then alleges that on the death of Janssen there was not sufficient money in the estate to pay the two $3,000 bequests to plaintiffs, and that, though demand has been made on the defendant, she has refused to pay the deficiency pursuant to her agreement with the testator.

The court found the issues in favor of plaintiffs and that the sum of $2,765.90 was the amount of the deficiency, and directed that the real estate in question be impressed with a trust in favor of the plaintiffs in such sum, together with interest.

The appellant argues here that plaintiffs' petition attempts to create a trust in real estate by an oral agreement, and that therefore the petition fails to state a cause of action, and the trial court erred in overruling defendant's objection to the introduction of any testimony. It is urged in support of this contention that equity will not enforce verbal agreements in the face of the Statute of Frauds, and the person holding legal title will not be deemed to hold the property as a constructive trustee unless there is something more than the violation of a parol agreement.

"Whenever a person acquires the legal title to land or other property by voluntary conveyance by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specific purpose—as, for example, a promise to convey the land to a designated individual, to reconvey it to the grantor, or the like—and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, the whole transaction by means of which the ownership is obtained will be treated, in equity, as a scheme of actual deceit, and the court will treat the person so acquiring the legal title as a trustee, and decree him to hold the title for the benefit of the true beneficiary. The statute of frauds, which was intended to prevent frauds, turns against him as a perpetrator of a fraud. It is not, therefore, the fact that the bargain by which he obtained the title is verbal that governs the case, but the fact that he procured the title to be made to him in confidence, the breach of which is fraudulent and in bad faith. The ground of equitable relief and immunity from the statute is the fraud perpetrated, not the agreement to hold in trust. Such a trust does not affect the deed, but acts upon the gift as it reaches the possession of the grantee, and the foundation of the trust is that equity will then interfere and raise a trust in favor of the persons entitled to be benefited in order to prevent a fraud. It is not essential that there be an actual verbal promise to carry out the grantor's conditions, but when one accepts a conveyance which the grantor states is to be on certain conditions as to the use of the property, the grantee will be held to have acquiesced in and accepted the land upon the conditions made." 26 R. C. L. § 85, pp. 1238-1239.

Section 3105, Rev. Stat. of Mo. 1929 (Mo. St. Ann. § 3105), provides that, "when any conveyance shall be made of any lands, * * * by which a trust or confidence may arise or result by implication of law, such trust or confidence shall be of like force as the same would have been if the act [Statute of Frauds] had not been made." It has been specifically held that this section applies "to all conveyances made under such circumstances that a trust should arise with respect thereto. This includes constructive trusts, arising ex maleficio, enforced on the ground not only that they are expressly excepted out of the statute, but also that to apply the statute would make it an instrument of fraud." Bryan v. McCaskill, 284 Mo. 583, loc. cit. 603, 225 S. W. 682, 687.

"It is also well settled that a trust arising ex delicto or ex maleficio—that is, by the wrong or deceit of the defendant—will establish a constructive trust in him, and will not be regarded as an express trust or within the statute of frauds. * * *" Thierry v. Thierry, 298 Mo. 25, loc. cit. 49, 249 S. W. 946, 954.

The Statute of Frauds is not to be used as a shield for fraud; and, where a party has by his promise to buy, hold, or dispose of real estate for the benefit of another, induced action or forbearance by reliance upon such promise, it would be a fraud if such promise should not be enforced, and the promisee will be treated as a trustee for the benefit of the party interested. Leahey v. Witte, 123 Mo. 207, 27 S. W. 402.

The authorities we have cited...