Long v. Conrad

• Decision Date: 01 October 1931
• Docket Number: 28890
• Citation: 42 S.W.2d 357
• Parties: LONG v. CONRAD
• Court: Missouri Supreme Court

42 S.W.2d 357

LONG v. CONRAD

No. 28890

Supreme Court of Missouri, Second Division

October 1, 1931

C. M Kendrick, of Marceline, for appellant.

OPINION

COOLEY, C.

By this action, instituted January 6, 1927, plaintiff below asked to be decreed the owner of a half interest in a tract of approximately ninety-five acres of land in Chariton county and for partition thereof. He prevailed in the circuit court and defendant appealed.

The petition is in two counts, the first being in equity and the second for partition. The first count alleges in substance that on March 15, 1926, plaintiff and defendant purchased the land (describing it) from one Cupp; that 'in the original purchase' from Cupp plaintiff was the sole purchaser; and proceeds thus:

'That at the time of the making of said purchase plaintiff did not have immediately and conveniently available the ready money with which to make the payment for said land, to-wit: the sum of twenty-five hundred dollars ($ 2,500.00) and by agreement made between plaintiff and defendant in consideration that defendant should have an equal shared and interest in said real estate with plaintiff, defendant was to and did furnish the money with which to make payment therefor; that said money was furnished by defendant with the understanding that when said land should be disposed of by plaintiff and defendant, defendant should have and receive out of the moneys realized from the sale of said land the money he had invested therein, to-wit: twenty-five hundred dollars ($ 2,500.00) and that of the remaining proceeds arising from said lands, plaintiff and defendant would be joint owners.

'Plaintiff says that defendant with the fraudulent design of cheating and defrauding plaintiff out of his interest in said land represented and proposed to plaintiff that inasmuch as defendant was furnishing the money with which to purchase said land that the title thereto should be taken and carried in the name of defendant and that defendant would, after receiving said title execute to plaintiff a paper in the nature of a declaration of trust declaring and fixing plaintiff's undivided half interest in said land, and plaintiff relying upon the good faith of defendant so to do consented to the taking of the title to said land by defendant, to be held in trust as aforesaid, and the deed to said land was accordingly made to defendant; that after defendant acquired the legal title to said land, acting in pursuance of the original fraudulent purpose and design, refused to execute the declaration of trust as promised by him, with the purpose and intent to cheat and defraud plaintiff of his interest in said land. That the actual value of said land was largely in excess of the purchase price thereof which fact was well known and recognized by defendant at the time.'

It is then alleged that after said purchase and about December -- , 1926, defendant, pursuant 'to his fraudulent purpose and design to cheat plaintiff out of his interest in said land,' refused to recognize plaintiff's right or interest therein and refused to make conveyance to plaintiff 'of a legal title or interest therein' or to recognize plaintiff as owner of an undivided interest, but asserted sole ownership in himself; that defendant is threatening to sell said lands as his own, and unless restrained from so doing 'is likely to make sale of said lands to some innocent purchaser,' thereby depriving plaintiff of his interest in the land.

The prayer of that count is that the 'legal title' held by defendant be decreed to be the 'mere naked legal title held by defendant as trustee for the benefit of plaintiff and defendant as tenants in common,' and that defendant be restrained from disposing of or incumbering the said real estate, and for general relief.

The second count of the petition is an ordinary action in partition, alleging that plaintiff and defendant own the lands described as tenants in common, one-half each; that 'in the acquisition of the real estate above described, by plaintiff and defendant, defendant invested twenty-five hundred dollars ($ 2,500.00) on the 15th day of March, 1926, which sum with six per cent. interest thereon from said date should be charged against said land as an advancement in favor of defendant'; that $ 28.02 paid by defendant for taxes, less $ 26.50 collected by him in rents, should be charged in favor of defendant, and items aggregating $ 18.30 paid by plaintiff for repairs, insurance, and grass seed should be charged in favor of plaintiff. Sale of the land and partition of proceeds, after payment of costs and advancements, are prayed.

Defendant's answer to each count was a general denial.

The judgment was for plaintiff as prayed for on both counts. On the first count the court found that prior to March 15, 1926, plaintiff had contracted to purchase the land for $ 2,500; that after making such contract plaintiff and defendant entered into an agreement whereby plaintiff 'let defendant have an undivided one-half interest in said land' in consideration that defendant would furnish the purchase money, and that by agreement between them the land was conveyed to defendant 'to be by him held for the joint interest of himself and plaintiff'; that there was no fixed time in which plaintiff was to refund to defendant his half of the purchase price, but that the intention of the parties was that the title to the land was to be carried in defendant's name 'as security to him for the payment of the purchase price,' and that he would be entitled to receive the legal rate of interest, 6 per cent., and that the land would be 'chargeable' with a lien in defendant's favor for the money so advanced for plaintiff, plus interest thereon; and 'the court further finds that this arrangement was agreed to, if not suggested by defendant, but that in making such agreement the court finds that defendant did so with fraudulent purpose and design of cheating plaintiff out of his interest in said land and that after he had received the deed that vested the legal title to said land in himself defendant refused to recognize plaintiff's interest therein and asserted himself to be the sole owner of said land.

'The court finds from the evidence that by the contract and undertaking of the parties plaintiff and defendant, defendant became the trustee of a constructive trust holding the title to said land for the joint benefit of himself and plaintiff.'

The judgment on that count is that defendant holds 'the naked legal title' and he is adjudged 'to be the trustee of a constructive trust holding said land for the benefit of himself and plaintiff Walter Long in equal parts.'

On the second count the court found that plaintiff and defendant owned the land as tenants in common; that plaintiff was entitled to have partition; that said lands could not be divided in kind; that said lands were chargeable with 'certain advances that have been made by both plaintiff and defendant the exact amount of which will be by the court determined prior to distribution of the assets arising from the sale.' Order of sale follows.

The Evidence.

Both counts were tried together as though the petition contained but one count stating a single cause of action. Plaintiff testified in substance as follows: That after he, individually, had had some negotiations with the owner's agent relative to purchase, he had a conversation with defendant, whom he had long known. Defendant asked him if he knew 'anything we could buy that would make any money,' to which plaintiff replied that he might know in a few days, having in mind 'this deal for this land.' Thereafter plaintiff reached an agreement with Ellis, the agent, for the purchase of the land and again saw defendant. Defendant said he would pay for the land; that 'there wasn't anything said about when I was to pay my part whatever'; that defendant was to have a half interest as consideration for furnishing the purchase money; that they went together to Marceline and saw Ellis, who had a contract ready, and 'I told him he would have to make another contract, to include Conrad as he was putting up the money'; that defendant furnished all of the purchase money, $ 2,500.

The first contract prepared by Ellis was not signed. It appears from plaintiff's testimony that a second contract, in which both plaintiff and defendant were named as purchasers, was prepared by one Embree and seemingly, though this is not clear, was signed by the parties. But whether signed or not, that contract, according to plaintiff's testimony, was also abandoned and by mutual consent was destroyed. Its contents are not in evidence. From the vagueness of plaintiff's testimony and the positive testimony of defendant and Embree, it is apparent that it was not a contract but a deed naming both plaintiff and defendant as grantees, and was destroyed when plaintiff failed to produce his part of the purchase price and the agreement was reached that defendant should furnish all the money and take title. At all events, it is conceded the agreement finally acted upon was wholly verbal.

The deed conveying the land was made and delivered to defendant by agreement of plaintiff and defendant. Plaintiff said that defendant 'was to give me a contract' but refused to do it. (He did not say when defendant refused. His petition alleges it was about December -- , 1926) He testified that he and defendant sowed some seed on the premises and had some repairing work done on the fences, for which plaintiff paid and that he also paid a $ 3.20 item for insurance. Defendant collected $ 26.50 rent from one Chrisman, to whom 'they' rented some of the ground for oats, and defendant paid the taxes, $ 28.04, the next fall. Defendant put his own tenant on the place, who was...