Lawson v. Cunningham

Decision Date28 June 1918
Citation204 S.W. 1100,275 Mo. 128
CourtMissouri Supreme Court

Appeal from Boone Circuit Court. -- Hon. Samuel Davis, Special Judge.


Finley & Sapp and Frank G. Harris for appellants.

(1) The will created a trust fund during the life of Lucy B. Shields in which her children took a contingent remainder. West v. Bailey, 196 Mo. 517; Wood v. Kice, 103 Mo 329; Luquire v. Lee, 121 Ga. 624. (2) Under such a trust the trust property cannot be diverted from the objects named by the donor, and neither the trustee, nor Lucy B Shields, nor both together, nor a court, had power to convey the property and defeat the rights of the remaindermen therein. Sampson v. Mitchell, 125 Mo. 217; West v. Bailey, 196 Mo. 517; Arnold v. Brockenbrough, 29 Mo.App. 625. (3) There is no express power of sale given the trustee, and even if it be granted that he had an implied power of sale, it was personal to J. H. Field and did not survive to a substituted trustee. Gamble v. Gibson, 59 Mo. 595; 39 Cyc. 346, 410; De Lashmutt v. Teeter, 261 Mo. 437; Luquire v. Lee, 121 Ga. 624; Belote v. White, 39 Tenn. 703; Mitchell v. Spence, 62 Ala. 450; Hatt v. Hagaman, 33 N.Y.S. 5; Flint v. Spurr, 56 Ky. 499; Kennedy v. Pearson, 109 S.W. 280; Potter v. Ranlett, 116 Mich. 454; Goad v. Montgomery, 119 Cal. 552. (4) When the portion of the trust fund was invested in the real estate in controversy, such real estate became subject to the trust. Freeman v. Maxwell, 262 Mo. 21; Wood v. Kice, 103 Mo. 336. And the insertion in the deed from Jacobs to Wm. C. Shields, as trustee, in the habendum clause, of the added power of sale was unauthorized by the trust instrument, and therefore void. Freeman v. Maxwell, 262 Mo. 24; Clark v. McGuire, 16 Mo. 312; Henderson v. Williams, 97 Ga. 709. (5) Under the trust as declared, upon the death of the life tenant, the remaindermen would have a right of entry. Garesche v. Levering Inv. Co., 146 Mo. 449; Rector v. Dalby, 98 Mo.App. 198; Pugh v. Hays, 113 Mo. 434; 28 Am. & Eng. Ency. Law, p. 947. (6) The deed from Curtis Field, trustee, and Lucy B. Shields to Elijah A. More did not convey the title of the remaindermen. Such trustee, appointed by the circuit court of Madison County, Kentucky, had no power to convey real estate in Missouri and the deed for that reason is void, so far as the remaindermen are concerned. De Lashmutt v. Teeter, 261 Mo. 412; Case note, 69 L. R. A. 673. So far as these remaindermen are concerned, consent by William C. Shields, trustee, and Lucy B. Shields could not give the trustee power to convey or confer jurisdiction on the circuit court of Madison County, Kentucky, to convey land in Missouri. In Re Drainage Dist. v. Voltmer, 256 Mo. 162; 11 Cyc. 673; Vandeventer v. Bank, 232 Mo. 618. (7) The Statute of Limitations has no application to this case. The answer of defendant Susan B. Cunningham shows on its face that she claims by mesne conveyances from Elijah A. More; that she claims under the trust, not adversely to it. Therefore, as to her and her predecessors in title, the Statute of Limitations never commenced to run during the life of Lucy B. Shields. Goodwin v. Goodwin, 69 Mo. 621; 1 R. C. L., p. 754, sec. 80. The Statute of Limitations must be pleaded in order to be available as a defense. Stevenson v. Smith, 189 Mo. 466; Chouteau v. Allen, 70 Mo. 341. Furthermore, persons dealing with a trust fund do so at their peril, and purchasers from the trustee or life tenant are not innocent purchasers where the record under which they claim discloses the character of the fund or property involved, and one who acquires property with notice, either actual or constructive, that his grantor holds title as trustee, stands in his grantor's shoes and holds the property charged with the trust. McDonald v. Quick, 139 Mo. 498; Turner v. Edmonston, 210 Mo. 427; 39 Cyc. 376, 565; Griswold v. Perry, 7 Lans. (N. Y.) 98; Elliott v. Machine Co., 236 Mo. 546; Case v. Goodman, 250 Mo. 112; Canada v. Daniel, 175 Mo.App. l. c. 65. The interest of Lucy B. Shields and her trustee having been conveyed by them, she and her trustee estopped themselves from suing for possession of the property or the annual rents, and no limitation could run against the remaindermen by reason of the trustee being barred, even if it be conceded that the trustee held the fee simple title. Kingman v. Winchall, 20 S.W. 296; Heaton v. Dickson, 153 Mo.App. 312; Pickens v. Dorris, 20 Mo.App. 1; Wood v. Kice, 103 Mo. 338; Harris v. Smith, 98 Tenn. 286; Security Bank v. Callahan, 220 Mass. 84; Boston Trust Co. v. Luke, 220 Mass. 484; Mannagan v. Shea, 158 Wis. 619; 1 Cyc. 1069. In this case the trustee did not take a fee simple, but only a life estate in the fund or property, during the life of Lucy B. Shields. Therefore, since the trustee and Lucy B. Shields were tenants for life only, whatever they did or did not do could not affect the rights of the contingent remaindermen. In Re Spreckel's Estate, 123 P. 371; Luquire v. Lee, 121 Ga. 624; Brown v. Richter, 49 N.Y.S. 368; Dresser v. Travis, 79 N.Y.S. 928; Losey v. Stanley, 147 N.Y. 560; Belote v. White, 39 Tenn. 703; Bull v. Walker, 71 Ga. 195, Hill on Trusts (4 Am. Ed.), p. 382; 39 Cyc. 212, 213; Harbison v. James, 90 Mo. 427; In Re Soulard Estate, 141 Mo. 663; Throckmorton v. Pence, 121 Mo. 50; Dameron v. Jamison, 143 Mo. 483; Snyder v. Elliott, 171 Mo. 362; Starr v. Bartz, 219 Mo. 47, 63. (8) The plaintiffs have not ratified the sale to More by taking the proceeds of the Christian College avenue property. Estoppel must be pleaded and proved as pleaded. Turner v. Edmonston, 210 Mo. 428; Noble v. Blount, 77 Mo. 242. The evidence on the plea of ratification or estoppel failed to show that the trustee invested the trust funds from the More sale in the Christian College avenue property. Anthony v. Building Co., 188 Mo. 718; Bank v. Simpson, 152 Mo. 656; Stokes v. Burns, 132 Mo. 214; Luquire v. Lee, 121 Ga. 624. If, without knowledge of the facts and of their rights, the plaintiffs have received a part of the proceeds of the sale to More, then they should be permitted to return the same as a condition to a decree vesting title in them. De Lashmutt v. Teeter, 261 Mo. 447; Sampson v. Mitchell, 125 Mo. 232. The finding of the court on this issue was erroneous because the evidence shows that the defendant never changed her position on atccount of the alleged division of the Christian College avenue property proceeds. De Lashmutt v. Teeter, 261 Mo. 439.

McBaine & Clark for respondents; Henry Lamn of counsel.

(1) The trust created by the will of Curtis Field was a trust of money, to-wit, ten thousand dollars. Under the terms of the trust the trustee had implied power to sell anything he bought with the money and give good title thereto. The power "to invest" and "to pay over" the income with a provision that "the money to return and be equally divided" among other persons gives an implied power to sell anything bought with the money. The power of sale exercised by Curtis Field, Jr., is derived from the will. The sale is therefore valid. 39 Cyc. 351; 2 Perry on Trusts (6 Ed.), 1269; Porter v. Schoffield, 55 Mo 303; Livingston v. Murry, 39 How. Pr. 102; Wurts v. Page, 19 N.J.Eq. 365; McCredie v. Metropolitan Ins. Co., 83 Hun. 526, 32 N.Y.S. 489, 148 N.Y. 761; Wright v. Mercerin, 34 Misc. 414, 69 N.Y.S. 936; Purdy v. Whitney, 20 Pick. 25; Powell v. Woodcock, 149 N.C. 235; Asch v. Asch, 47 Hun, 285, 113 N.Y. 232; Mendall v. Levice, 48 Misc. 271, 81 N.Y.S. 965; Byrnes v. Bayer, 86 N.Y. 210; Scottish American Mortgage Co. v. Massy, 94 Tex. 339; First National Bank v. Lee, 23 Ky. Law Rep. 1897; Webster v. Morris, 66 Wis. 366, 57 Am. St. Rep. 278; Burnham v. White, 102 N.Y.S. 717; In re Musten, 194 Pa. 437, 75 Am. St. 702; Cherry v. Green, 115 Ill. 591; Robinson v. Robinson, 105 Me. 68, 134 Am. St. 537; Harvard College v. Wells, 159 Mass. 114; Schloendorn v. Schmidt, 115 Md. 74; Boston Safe Deposit Co. v. Mixter, 146 Mass. 100; Holden v. Circleville Light Co., 216 F. 497. (2) The appointment of Curtis Field, who sold the land in question, was valid. While the real estate purchased by him was in Missouri, the trust fund invested in it was created by a Kentucky testator, and the fund was under the control of the circuit court of Madison County, Kentucky. The land was a part of the fund in charge of that court through its trustee. When the trustee died his successor was properly appointed for the entire fund. 39 Cyc. 287; Wheelen v. Kellner, 31 Ky. Law Rep. 1285; Dexter v. Cotting, 149 Mass. 92; Bradstreet v. Butterfield, 129 Mass. 339; Thomas v. Poole, 19 S.C. 323; Fitzgibbon v. Barry, 78 Va. 755; Haggins v. Straus, 91 Cal. 191, 25 Am. St. 171; Milbank v. Crane, 25 How. Pr. 193; Hawley v. Ross, 7 Paige, 103; Chase v. Chase, 2 Allen, 101; Curtis v. Smith, 60 Barb. 9; Donaldson v. Allison, 182 Mo. 627; Jenkins v. Lester, 131 Mass. 357; Smith v. Davis, 90 Cal. 25, 25 Am. St. 92; Pennington v. Smith, 69 F. 188; Breedlove v. Stump, 3 Yerg. (Tenn.) 265. (3) The appointment by the Kentucky court is not subject to collateral attack, in this case, though it be irregular. Trusts, 39 Cyc. 288; Dyer v. Leach, 91 Cal. 191, 25 Am. St. Rep. 717; Brandon v. Carter, 119 Mo. 572; Bredell v. Westminster College, 242 Mo. 333. (4) The sale of the land in question, by Curtis Field, Jr., passed the fee simple title thereto, freed from the trust, to Elijah A. More. This is true though the trustee had no right under the will to buy land in Missouri or power to sell the same. The trustee in this case sold the land and actually received double the money that he paid for the land. If he acted without authority in buying he acted properly in selling and...

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