Kessner v. Phillips

• Decision Date: 15 June 1905
• Parties: KESSNER et al. v. PHILLIPS et al., Appellants
• Court: Missouri Supreme Court

88 S.W. 66

189 Mo. 515

KESSNER et al. v. PHILLIPS et al., Appellants

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from Jackson Circuit Court. -- Hon. Jno. W. Henry, Judge.

Affirmed.

A. N Adams, John N. Southern and Scarritt, Griffith & Jones for appellants.

(1) A valid trust may be created by parol. Bispham on Principles of Equity (4 Ed.), p. 96; Nichols v. Eaton, 91 U.S 726; Stratton v. Edwards, 174 Mass. 378; Safford v. Rantoul, 12 Pick. 240. The intention of the grantor must be given effect if not contrary to law. Long v Turner, 107 Mo. 519; Brown v. Gibson, 82 Mo. 529; Gibson v. Bogy, 28 Mo. 478; Hoganshen v. Welscher, 14 Mo. 183; Jecko v. Taussig, 45 Mo. 170; Bruensmann v. Carroll, 52 Mo. 313; Smith v. Bell, 6 Peters 68; Cheney v. Stephens, 97 Mass. 77; Morrison v. Wilson, 30 Cal. 346; Blake v. Stone, 27 Vt. 476; Walliss Ex. v. Walliss, 4 Mass. 135; Railroad v. Beal, 47 Cal. 151; Allen v. Holtan, 20 Pick. 463; Pike v. Monroe, 36 Me. 315; Flagg v. Eames, 40 Vt. 20; Collins v. Lavelle, 44 Vt. 233. The intention of the grantors can be effectuated, and violate no principle of law. Wood v. Kice, 130 Mo. 335; Dougal v. Fryer, 3 Mo. 40; Clemorgan v. Lowe, 9 Mo. 455; Lampert v. Haydel, 20 Mo.App. 621; Lampert v. Haydel, 96 Mo. 439; Partridge v. Cavender, 96 Mo. 457; 2 Washburn on Real Property (5 Ed.), p. 9; McWilliams v. Nisley, 7 Am. Dec. 654; Langdon v. Ingram, 28 Ind. 360; Steward v. Brady, 3 Bush (Ky.) 623; Steward v. Barron, 7 Bush (Ky.) 368; Montague v. Crane, 12 Mo.App. 582. (2) The court erred in refusing appellants' offer to show that the judgement upon which execution issued was not final. Bliss on Code Pleading (3 Ed.), par. 328; Wicks v. Smith, 18 Kan. 508; Corby v. Wedle, 57 Mo. 452; Hook v. Turner, 22 Mo. 333; Fisher v. Stephens, 143 Mo. 181; Swan v. Stephens, 143 Mo. 384. (3) The sheriff's deed offered in evidence was invalid, by reason of the fact that the condition precedent to the right to set out the homestead had not been complied with. R.S. 1899, sec. 3617; Shacklett v. Scott, 23 Mo.App. 322; Blake v. Byrd, 131 Mo. 682.

Paxton & Rose for respondents.

(1) There was no trust declared in writing either by Robert N. Hudspeth or by J. L. Hudspeth's grantors, and now it is not permissible to add his verbal declarations to his will, much less to add his verbal declarations to a deed made by other parties. R.S. 1899, sec. 3416; Curd v. Brown, 148 Mo. 82; Green v. Cates, 73 Mo. 115; Price v. Kane, 112 Mo. 412; Perry on Trusts, sec. 76; Hillman v. Allen, 145 Mo. 638. (2) No spendthrift's trust is created by the deed to J. L. Hudspeth, because there is no provision made for a trustee, and a spendthrift's trust is based upon the assumption that the legal title is in a trustee with active duties to perform, and cannot be reached by execution against the cestui que trust. Lambert v. Haydel, 96 Mo. 451; Pugh v. Hayes, 113 Mo. 424. (3) The language of the deed only applies to debts contracted, and does not cover damages for a tort. Lear v. Liggett, 2 Simons 480; Whitfield v. Pritchett, 2 Keen 608; Doe v. Carter, 8 T. R. (Durnford & East) 57; King v. Robinson, Wightwick's Rep. 386. (4) Spendthrift trusts do not cover torts or crimes. A man who commits homicide is not a spendthrift. (5) It is not permissible to deed land with a proviso in the deed that it shall not be subject to the grantee's debts. This is the law in States where spendthrift's trusts are recognized. Blackstone Bank v. Davis, 21 Pick. 42; Broadway National Bank v. Adams, 133 Mass. 170; Jones on Real Prop., sec. 663. (6) An execution issued before motions for new trial and in arrest are overruled is not void. Ex parte Craig, 130 Mo. 595; Fontaine v. Hudson, 93 Mo. 62. (7) There was no complaint in the lower court that the homestead was not set off properly, no such defense was made, no evidence was introduced on this subject, and no such point can be raised here.

OPINION

MARSHALL, J.

This is an action in ejectment, instituted on the twentieth of September, 1899, to recover 70 acres of land in township 50, range 30, Jackson county, Missouri. The petition is in the usual form, and the ouster is laid as of September 20, 1899.

The action is against Phillips, the tenant in possession, and Joseph Lamertine Hudspeth, the owner.

The defendants answered jointly. The answer is a general denial, coupled with a special defense particularly set forth, the substance of which is, that the conveyance to the defendant Hudspeth of the land in controversy, created a spendthrift trust, whereby said Hudspeth was prohibited from alienating the land, and whereby it was attempted to place the same beyond the reach of his creditors. The answer further sets up, that in 1898 the plaintiff Kessner obtained a judgment for $ 5,000 against the defendant Hudspeth, under which the property in controversy was sold on execution and the plaintiffs became the purchasers thereof. And it is alleged that they thereby acquired no right, title or interest in the same. The reply admits the conveyance to Hudspeth, but denies that it created such a trust; admits the judgment aforesaid and the sale thereunder, and asserts that the plaintiffs obtained a good title to the property.

Upon the motion of the plaintiffs the case was transferred to the equity docket of the court, "for the reason that defendants have filed an answer setting up an equitable defense, and the case is now triable by this court." It does not appear from the abstract of the record that the defendant objected thereto or saved any exceptions to the ruling of the court.

The trial court entered judgment for the plaintiffs for possession, one cent damages, and $ 20 monthly rents and profits. After proper steps the defendants appealed.

The case made is this:

Robert N. Hudspeth, the uncle of the defendant Joseph Lamertine Hudspeth, was the owner of the property. On the thirteenth of March, 1871, he executed his will, by which he devised all of his property, including that in controversy, to his brothers and sister, that is, one undivided half to his brother Joel E. Hudspeth, and the other undivided half to his brothers George W. Hudspeth, Silas B. Hudspeth, and his sister Malinda P. Bell, share and share alike. Thereafter, in March, 1885, Robert N. Hudspeth died. And afterwards, on June 15, 1885, his said brothers and his said sister made, executed and delivered to the defendant, Joseph Lamertine Hudspeth, a deed to the property in question, being a part of the property devised to them, and which deed recited that, "in consideration of love and affection, and in pursuance to the verbal request of their brother Robert N. Hudspeth, now deceased, whose heirs and devisees they are, under and by virtue of his last will and testament . . . and upon the condition precedent as herein set out, and in consideration of the sum of one dollar to them paid by Joseph Lamertine Hudspeth, . . . they have granted, bargained, sold and transferred, and do by these presents, grant, bargain, sell and transfer unto the said Joseph Lamertine Hudspeth, upon the terms and conditions hereinafter set forth," certain property, amounting to one hundred twenty acres, and covering the seventy acres here in dispute. The deed contained the following further provisions: "This conveyance being made upon the express condition that the above described real estate shall not be liable to any debts that the said Joseph Lamertine Hudspeth may now have, or that he may contract during the period of thirty years from the date hereof. And the said Joseph Lamertine Hudspeth shall have no right, power or authority to, in any manner, sell, encumber or dispose of said real estate or any part thereof for the period of thirty years from the date hereof, except to dispose of the same by his last will and testament. After the expiration of said thirty years, as aforesaid, said real estate shall vest absolutely in the said Joseph Lamertine Hudspeth, free and clear of all the conditions herein named to use and enjoy and dispose of in any manner he may deem proper. The said Joseph Lamertine Hudspeth to have the use and enjoyment and the income therefrom from this date upon the terms and conditions above named. But should he sell, or attempt to sell or encumber, said premises at any time during the said thirty years, then, in that event the title to the above described premises shall immediately vest in the said first parties, their heirs or assigns."

The plaintiffs offered in evidence the sheriff's deed, under the judgment aforesaid. The defendants objected to the introduction of the deed upon two grounds, first, because the deed does not show, on its face, that the law in reference to the setting apart of a homestead had been complied with; and second, that the judgment, under which execution was issued, was not a final judgment, and therefore the clerk had no right to issue the execution. The court overruled the objection and the defendants saved exception.

The sheriff's deed showed that commissioners were appointed to set out the homestead of the defendant Hudspeth, and that they did set apart to him fifty acres of the tract as a homestead, and that the remaining seventy acres were sold to the plaintiffs.

The plaintiffs also offered in evidence the amended petition in the case wherein the judgment aforesaid was rendered, which showed that the plaintiff Kessner was the wife of Joseph W. Kessner, and that the defendant Hudspeth had wilfully shot and killed him, for which she sued for $ 5,000 damages. The plaintiffs also showed the rental value of the land and then rested.

On their behalf the defendants offered in evidence a certified copy of the judgment aforesaid which also contained a recital of the fact that the defendant had filed motions...