Lathrop v. Baubie

• Decision Date: 09 November 1891
• Parties: Lathrop v. Baubie, Appellant
• Court: Missouri Supreme Court

17 S.W. 584

106 Mo. 470

Lathrop v. Baubie, Appellant

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from Clinton Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

Ramey & Brown and J. F. Harwood for appellant.

(1) Where a voluntary trust is once perfectly created, and the relation of trustee and cestui que trust is once established it will be enforced though the settler has destroyed the deed or has attempted to revoke it by making a second voluntary settlement of the same property, or if the estate, by some accident, becomes revested in the settler. Perry on Trusts sec. 104. (2) In England, where the trustee is not entitled to compensation for services, his expenses constitute a lien upon the estate, and he will not be compelled to part with it until his disbursements are paid. Perry on Trusts, sec. 907 and cases cited. No conveyance will be ordered or allowed until he is repaid. Duke v. Williamson, 25 Beav. 622. If the trust fund is not sufficient for the reimbursement for the trustee he may call upon his beneficiary for reasonable compensation for time, trouble and money expended. Perry on Trusts, sec. 909, and cases cited. Trustees have an inherent equitable right to be reimbursed for all expenses which they reasonably and properly incur in the execution of the trust, and it is immaterial that there are no provisions for such expenses in the instrument of trust. Perry on Trusts, sec. 910, and cases cited. And in America the same rule is extended to compensation for time and personal services of trustee. Perry on Trusts, sec. 917, and cases cited; Story's Eq. Jur. [11 Ed.] secs. 1268, 1268a; Barney v. Saunders, 16 How. 535, 542. And in Missouri a trustee is entitled to have compensation out of the trust fund for such services as are in the line of the duties imposed upon him by the instrument creating the trust. Tracy v. Railroad, 13 Mo.App. 295; S. C., 84 Mo. 210. (3) Baubie's trust continues so long as he holds the legal title to the land, and his compensation being a charge upon it the statute of limitations can have no application. The property can only be taken from the trustee upon a full settlement of the matters pertaining to the trust. The beneficiaries can at most be entitled to a conveyance of a legal title as broad as their equitable one, which is subject to all charges upon the property in the hands of the trustee. The statute does not run against the enforcement of a continuing trust. Kane v. Bloodgood, 7 Johns. Ch. 110; Bacon v. Rives, 106 U.S. 99; Seymour v. Freer, 8 Wall. 202; Russell v. Peyton, 4 Bradw. 473.

H. Lander and Wm. Henry for respondent.

(1) No charge or lien will attach to the trust property in favor of a mere agent, for his commission or compensation for services. Perry on Trusts [3 Ed.] sec. 907. (2) The evidence clearly sustains the findings of the trial court, and, even in equity, this court will not disturb the finding of facts by the lower court, unless there are cogent reasons for so doing. Mathews v. O'Neill, 94 Mo. 520, and cases there cited. (3) In this state the statutes of limitations apply to all civil actions, whether at law, or such as are cognizable only in equity. The former rulings on this subject have been changed. Rogers v. Brown, 61 Mo. 187; Kelly v. Hurt, 61 Mo. 463; Kline v. Vogel, 90 Mo. 239. But, even under the former ruling of this court, limitation would apply; because Baubie's claim for services as an agent was simply so much money due, for which he could have sued at law. Keeton's Heirs v. Keeton, 20 Mo. 538. No "technical and continuing trust" ever attached to his claim for services. Johnson v. Smith, 27 Mo. 592; Ricards v. Watkins, 56 Mo. 553. All of Baubie's acts with reference to the trust property are clearly referable to his agency under Hunt, Godfrey & Co. Perry on Trusts [3 Ed.] sec. 261; Balchen v. Scott, 2 Ves. Jr. 678; Carter v. Carter, 10 B. Mon. 327; Judson v. Gibbons, 5 Wend. 224. (4) Baubie, at most, can only be viewed in the light of a dry or naked trustee whose duty it is to release to the beneficiaries, or to Lathrop who represents them, upon request. Perry on Trusts, secs. 351, 352, 520. See separate opinion of Adams in Roberts v. Mosely, 51 Mo. 287.

OPINION

Brace, J.

There is no dispute about the facts in this case. On the third of April, 1855, Edward M. Samuel and Samuel McCorkle, being then the owners in fee of the land on which the town of Cameron now stands, by deed of that date, conveyed the same to William G. Daniel in trust "for the benefit and profit" of Edward M. Samuel, Samuel McCorkle, Blair H. Mathews, George M. Smith and Michael F. Tiernan, "it being the intention of the company composed of the above-named parties to lay off and establish a town on said lands; and to avoid any difficulty, trouble or expense in the use, sale and conveyance of the aforesaid real estate, or any part thereof by reason of the death or removal of any of the members of said company, or from any cause whatever, the said William G. McDaniel is hereby constituted and appointed a trustee for said company, and the said trustee is hereby invested with full power and authority (after he shall have signified his acceptance of the trust in writing and the same is duly acknowledged, and shall have entered into bonds to the company in the sum of $ 5,000, etc., to sell and convey all town and out-lots that may be laid off on said real estate, and to receive the purchase money therefor; which town is to be known by the name of 'Cameron,' and any and every deed of conveyance so made by the said trustee shall be in the name of the 'Cameron Town Company;' such deeds from said trustee shall convey a title of fee simple with clause of general warranty to the purchaser or purchasers of lots sold as aforesaid.

"The said trustee shall, on the first day of January, A. D. 1856, and every year thereafter, render to anyone of the company a full and perfect statement of all moneys received by him for the sale of lots, together with a list of lots sold and the prices thereof, respectively, and shall pay over to each of the members of the company, or their legal representatives or assigns, the proportion to which they are entitled.

"The said trustee shall receive for his services as aforesaid a commission of five per cent. on all money received by him for sale of lots, and said trustee is to be reimbursed for all the costs of surveying lots, advertising, recorder's fees, and fees of clerks or justice for acknowledgments of deeds, and such other necessary expenses as may be incurred for the benefit of said company by their direction and authority, before distribution."

The deed then further provides that: "In the event of the death or removal from the county of Clinton to a place which, in the judgment of a majority of the members in interest of said company, would be too remote for said trustee to attend to the duties of his trust, or in case of his resignation, or if, from any other cause, said trustee, or his successor or successors, should, in the opinion of a majority of the members of said company, in interest, become disqualified for the performance of his duties as such trustee, the county court of Clinton county, Missouri, may, and is hereby requested, upon the application of any one member of the company, to appoint a prudent, sober, responsible and discreet man as his successor, who, when he shall have agreed in writing, properly acknowledged and recorded, faithfully to execute this trust, and shall have given bond with good and sufficient security, to be approved by said court, in the sum of $ 5,000, with the conditions contained in the bond of the trustee hereby appointed as aforesaid, shall have all the rights, privileges, powers and emoluments which are hereby conferred on the said William G. McDaniel, so that there shall never be any interruption or hindrance or delay in the sale or conveyance of the property hereby conveyed in trust.

"If the county court of Clinton county aforesaid refuse or fail to execute the request here made at any time, a majority of the company in interest, or the executors or administrators of such as may be dead, may, in person, or by agents or proxy duly authorized in writing, select a trustee on the above-named conditions. (If any one of the above-named company shall sell or convey the whole or any part of his interest in the property hereby conveyed in trust, the purchaser from him or them shall come into the company on the terms and conditions of this trust.)"

McDaniel accepted the trust created by said deed, and soon thereafter resigned, having done nothing as trustee, and on the first day of September, 1856, the defendant Baubie was appointed by the county court of Clinton county successor to said McDaniel, and qualified as such. On the twelfth of May 1860, John M. Forbes, John Duff and John W. Brooks, of Boston, Massachusetts,...