Lane v. Ewing

• Citation: 31 Mo. 75
• Parties: LANE & WIFE, Appellants, v. EWING, Respondent.
• Decision Date: 31 October 1860
• Court: United States State Supreme Court of Missouri

31 Mo. 75

LANE & WIFE, Appellants,

v.EWING, Respondent.

Supreme Court of Missouri.

October Term, 1860.

1. A trust created and declared in conformity to the requirements of the statute of frauds will be enforced, notwithstanding the consideration is voluntary. If, however, the transaction remains executory and incomplete, an enforceable trust will not be held to be created. The equitable interest must be completely parted with.

2. A trust need not be created by writing, although, when it relates to real estate, it must be proved by writing.

3. A complete divestiture of equitable title may be produced by a clear and unambiguous declaration of a trust, although a further disposition of the legal title is still in contemplation.

4. In petitions seeking equitable relief, where a full statement of the facts is fit, the plaintiff should be permitted to state his own case in his own way.

Appeal from St. Louis Land Court.

Demurrer to a petition. The plaintiffs are William Carr Lane and Mary E. Lane, his wife; the defendant, William L. Ewing. The suit is in behalf of said Mary E. Lane. The petition is in substance as follows, the parts in brackets being those portions stricken out on motion of defendant: that said Lane before 1838 became the owner of a large amount of real estate in the city and county of St. Louis; [that defendant Ewing is the younger brother of the plaintiff Mrs. Lane, and as such was nurtured and brought up chiefly in the family and under the protection of the plaintiffs]; that for several years next before 1842 said Lane became embarrassed in his affairs and unable to promptly pay his debts; that in order to secure his creditors against loss and to gain time for a better settlement of his affairs, he gave liens and encumbrances upon various portions of his real estate, and among the rest the tract of thirty-two arpens known as the Vasquez tract; that judgments were obtained against Lane by certain of his creditors, and executions issued, and a large quantity of real estate advertised to be sold November 21, 1842, among the rest, this Vasquez tract; that said tracts and lots, including said Vasquez tract, were offered for sale by the sheriff on that day; that defendant purchased said Vasquez tract for ten dollars, a merely nominal price, and the other tracts at prices very far below their market value, the amount bid for all being only one hundred and thirty-one dollars and fifty cents; [that the reason why defendant was enabled to purchase the said lands at those diminished prices was that few or no persons bid against him, because those, who would otherwise have bid for the lands and have run them up to much higher prices, declined to compete with the defendant, induced thereto by the belief that the defendant was trying to purchase the said lands for the purpose of saving, if possible, something from the wreck of said Lane's estate, and of making a provision out of the lands for his sister, the plaintiff, Mrs. Lane]; that on January 1, 1843, the sheriff made him a deed conveying said lands to defendant. Plaintiffs do not charge that the defendant purchased said lands under any special contract that he would hold them in trust, either for the payment of the debts of said Lane or for the use of Mrs. Lane, [but do charge that in point of fact he did purchase them with that intent; that after the purchase he did frequently, both to these plaintiffs and to other persons, declare that he held the said lands under the sheriff's deed only for the purpose of refunding to himself the money paid by him for said lands and whatever advances he had made for the said Lane, and of paying the debts of said Lane, for which he, defendant, was in any way liable, and, these objects being accomplished, for the use of Mrs. Lane; that for a number of years after the making of said deed defendant treated said lands not as his own estate but as a trust fund in his hands for the uses and purposes above expressed, by offering to sell portions of the said lands for the payment of the debts of the said Lane, and by exhibiting to plaintiffs accounts for taxes, and other expenses incident to the possession and management of said lands, as expenses chargeable upon the trust fund in his hands]; that on or about November 29, 1847, defendant, being about to start from St. Louis on a long journey, in order to secure the rights of said Mary E. Lane, in case of his death, voluntarily made a memorandum, signed by him with his name, in the presence of witnesses, which is recorded, and which is as follows. [This memorandum, omitting the date, signature of defendant and those of witnesses, is set forth below in the opinion of the court.] Plaintiffs state that before said sheriff's sale, and on or about August 7, 1841, the plaintiff Lane, to raise money to pay certain pressing debts, borrowed fifteen thousand dollars from Madame Pelagie Berthold, and gave his note therefor with defendant Ewing as security thereon; that to secure said note he conveyed a large amount of real estate, including the Vasquez tract, to J. B. Sarpy and P. A. Berthold as trustees; that this debt to Mad. B. remained unpaid until 1848; that in July, 1848, it was ascertained that there remained due upon said note, for principal and interest, twenty thousand dollars; that it was thought desirable by the parties interested that said trustees Sarpy and Berthold should be relieved from the trouble of managing and selling the land for the payment of the debt, and that the defendant, who was liable as security, should have a larger control over the security and power to sell the lands as occasion might offer, to relieve himself from liability by paying the debt in whole or in part; that said trustees conveyed said lands to defendant in July, 1848, at the request of Mad. Berthold, the creditor, who joined in the deed; that plaintiff Mrs. Lane was not a party to the transaction; [that after the making of this deed said Lane was anxious to be relieved from the pressure of his debts, and offered repeatedly, so far as he had power over the subject, to allow Mad. Berthold to take the whole of said real estate in absolute property in full payment of his indebtedness to her, and in like manner offered to let defendant, who was son-in-law of Mad. Berthold, to take the whole of said lands, which are included in the sheriff's deed to defendant, in full satisfaction and discharge of said Lane's said indebtedness; that sometime after the making of said deed of trust, with a view to the speedy payment of the debt and discharge of said Lane, a valuation of the lands was made by disinterested persons; that this valuation was in some particulars unsatisfactory to the said Lane; that he believed some of the property was estimated too low; that he objected to making a partial sale of the lands at those low rates, but, for the sake of being fully discharged from the debt, he was willing and offered to defendant that he should take the whole of the lands and at once discharge said Lane from the debt; that defendant Ewing declined the offer]; that said Ewing, having the legal title vested in him by the deed last mentioned and the sheriff's deed, and being personally interested, as being jointly bound with the said Lane in the said note, proceeded to execute the trust first reposed in Sarpy and Berthold by selling portions of said lands from time to time and applying the proceeds towards the payment of said debts; that in doing this he frequently employed the agency and assistance of the said Lane to negotiate sales and settle the terms of conveyance, and then said Ewing made the deeds to the purchasers and received the proceeds and applied them to the purposes of the trust; that sometime in the year 1849 the said debt to Madame Berthold, principal and interest, was paid and extinguished by said Ewing out of the proceeds of the lands thus sold by him; that by the sales of the lands so held in trust by said Ewing all the debts of said plaintiffs, for which the defendant was liable as security, were fully paid; and all advances and outlays of money made by the defendant, either for the purchase of said trust lands or any of them, or for the purchase or extinguishment of encumbrances thereon, or for taxes or other charges, &c. that the defendant, being thus relieved from all liability on account of his suretyship for plaintiffs and being fully paid and refunded all sums advanced by him, proceeded to execute the trust on which he held the said lands as conveyed to him by the sheriff, and as the said trust is declared in the written memorandum of November 29, 1847; that it was not necessary to sell all the lands to raise the required amount of money; that lands considerable, both in number and value, remained unsold in the hands of defendant, and he in the year 1849, by divers deeds, conveyed to trustees, for the sole and separate use of the plaintiff Mrs. Lane, all the said lands remaining unsold except the said Vasquez tract; that said tract has never been sold by the defendant for any trust purposes, but he now claims the same as his own property free from the trust in favor of the plaintiff Mrs. Lane; that said tract stands in the condition of the other unsold tracts and lots which were conveyed by the defendant to the trustees of Mrs. Lane; [that before the full payment of Mad. Berthold's debt, and while the defendant held said tract in trust for Mad. Berthold's debt and in residuary trust for Mrs. Lane, the defendant more than once expressed a wish to own the same as his private property, and to improve it and reside there, and the plaintiff Lane gave his free consent that he (defendant) should take it at a moderate, even low price; that for a short time said Lane believed that defendant had determined to take said tract and pay a low price for it, and believed that he had done so by paying off a debt of the said Lane for about $2,500 or $3,000, and that nothing remained to be done to perfect...