Kennedy v. Keating

• Decision Date: 31 March 1863
• Citation: 34 Mo. 25
• Parties: OPHELIA KENNEDY, Appellant, v. MARY KEATING et al., Respondents.
• Court: Missouri Supreme Court

34 Mo. 25

OPHELIA KENNEDY, Appellant,

v.MARY KEATING et al., Respondents.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

R. S. Hart and E. Peacock, for appellant.

I. The judgment is clearly not only against the law arising upon the case as stated in the record, but is clearly against the evidence, for that establishes his fiduciary relation as trustee for plaintiff in point of fact; recognizing it, he could not make the purchase.

II. The judgment of the court is clearly wrong on the law separately, on the facts separately, and especially is it wrong putting the law and the facts of the case together. (Hill on Trustees, 782, title, “Of the Disabilities of Trustees”; Kelly v. Johnson, 27 Mo. 249; 1 John's Chy. Rep. 582.)

III. The whole case shows such bad faith, on the part of the trustee or quasi guardian, as to call for the intervention of the court in setting aside his purchase; especially his bad faith in preventing competition at the sale.

IV. The case is in the nature of a bill in equity, and should be so considered here, and the whole grounds of the judgment of the court below should be accordingly reviewed.

A. M. & S. H. Gardner, for respondents.

I. It is simply the naked question of the right of Keating to purchase in his own right and for his own benefit, the appellant relying upon the well established rule that a party will not be allowed to purchase and hold property for his own use and benefit to which he stands in a fiduciary relation, if contested by the cestui que trust.

It will be observed, however, that that rule cannot be applied to this case, where the sale was made by a public officer under proceedings adverse to the plaintiff's interest, and which Keating, had he been acting as her trustee or guardian, had not the power or means to prevent.

II. An actual guardian even, without funds in his hands, may lawfully become the purchaser, for his own use, of his ward's real estate sold by the sheriff under a judgment against the ward's ancestor. (Chospenning's Appeal, 32 Pa. 315.)

III. The reasons which forbid an agent or trustee to purchase the trust property apply to the case where he is the seller, and not where he purchases from one appointed to sell, as in this case. (Prevost v. Gratz, Pet. C. C. 364; id. 378.)

IV. Even if it were admitted that Keating had, or was, acting in a fiduciary capacity, as regards the appellant and the property in question, (either as her agent, trustee or quasi guardian,) still he could become the purchaser, as it was an absolute sale made by a public officer and entirely without his control. Nothing except fraud, which is not even alleged in this case, could divest the title. (Fisk v. Sarber, 6 Watts & Serg. 18.)

V. A purchaser at a public sale, who has paid the purchase money, can only be held a trustee on the ground of fraud. (Harris v. Conner, 10 Watts, 313; Sheldon v. Sheldon, 13 John. 220.)

VI. This was a public sale made to the highest bidder, no circumstances of fraud, money paid by the purchaser, and should not be disturbed. Even a guardian ad litem in partition may become a purchaser at the sale. (Jackson v. Woolsey, 11 John. 446.)

VII. It is further urged by the respondents that this being a proceeding in equity to enforce a trust respecting an interest in land, it cannot be maintained unless such trust is evidenced by an agreement in writing. (Walker v. Locke, 5 Cush. 90.) Though a trust need not be created by writing, yet to take the case out of the statute of frauds its terms and conditions must be clearly manifested and proven in writing.

VIII. Loose and general declarations of the intention of holding property in trust for others is not sufficient for the declaration of a trust which equity will recognize or enforce. (Steere v. Steere, 5 John. Chy. 1.) But to entitle the plaintiff to recover, it was necessary for her to show that the trust had been created, or the promise to convey made in writing, there being no allegation of fraud. (Wildbahn v. Robideaux, 11 Mo. 659.)

BAY, Judge, delivered the opinion of the court.

This is a proceeding in the nature of a bill in equity to divest the defendants of their title to a reversionary interest in a lot of ground in the city of St. Louis, and to vest the same in the plaintiff. The petition alleges that one René Paul, who died in 1851, devised and bequeathed, by his last will and testament, to the plaintiff, a lot of ground in block number 147, in the city of St. Louis, being the southeast corner of said block, and containing twenty-five feet front on Sixth street, by one hundred and twenty-seven and a half feet deep along Cerré street; that said devise is subject to a provision as follows: “ Provided, however, that should she die without having lawful issue, then the said lot shall revert to, and vest in and belong to my...