Moulden v. Train

• Decision Date: 10 June 1918
• Docket Number: No. 12921.,12921.
• Parties: MOULDEN v. TRAIN et al.
• Court: Missouri Court of Appeals

204 S.W. 65

199 Mo. App. 509

MOULDEN v. TRAIN et al.

No. 12921.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Clara W. Moulden against Dora E. Train and others. Judgment for plaintiff, and defendant named appeals. Affirmed.

O. E. Robinson, of Kansas City, for appellant. Ashley & Gilbert, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff began this action on the 30th of December, 1915, for dividends received to her use by said H. D. Train on 15,000 shares of the capital stock of Logan Oil & Gas Company, represented by stock certificate No. 88, issued by the Logan Oil & Gas Company, an Arizona corporation, to Charles A. Allen, and by him transferred, for value received, to plaintiff by his written assignment. The defense is the five-year period of limitation. The evidence to sustain the action consisted largely of a letter from Train dated the 14th of December, 1910. It is claimed that limitation began to run in Train's favor, at least from the date of the letter, and that being more than five years from the beginning of the action, it is barred.

Among other points made by plaintiff is one that Train held the money as an express trustee. If he did, the statute of limitations cannot be invoked, for it does not run against an express trust until it is openly disavowed. Koyl v. Lay, 194 Mo. App. 291, 297, 187 S. W. 279, 196 S. W. 433; St. Paul's Church v. Attorney General, 164 Mass. 188, 200, 41 N. E. 231; 2 Perry on Trusts, § 863; 2 Wood on Limitations, § 200. Ordinarily such trusts concern real estate, and must be in writing to satisfy the statute of frauds, but an express trust may exist as to personal property, and may be shown by parol as well as by writing. 1 Perry on Trusts, § 86. It happens to be evidenced by a letter in the present instance. The letter is a direct admission that Train was, and had been, holding for the owner, $600 arising out of dividends of certain stock, and that he was willing to pay it over to the owner, and requested that such owner be made known to him. The terms of the letter undoubtedly made Train the trustee of an express trust. "There is no particular formality required or necessary in the creation of a trust." Nor is it necessary to use any specific words such as "trust" or "trustee." Nor that the admission of trusteeship be addressed to the cestui que trust. 1 Perry on Trusts, § 82.

In Soar v. Ashwell, 2 Q. B. Div. (1893) 390, 394, it was said that the cases decided:

"That where a person has assumed, either with or without consent, to act as a trustee of money or other property, i. e., to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over, such money or property, a court of equity will impose upon him all the liabilities of an express trustee, and will class him with and will call him an express trustee of an express trust. The principal liability of such a trustee is that he must discharge himself by accounting to his cestui cue trust for all such money or property without regard to lapse of time."

There are several concurring opinions in that case. Bowen, L. J., said at page 397 of the report:

"That a person occupying a fiduciary relation, who has property deposited with him on the strength of such relation, is to be...