Mugan v. Wheeler

• Decision Date: 21 March 1912
• Citation: 145 S.W. 462
• Parties: MUGAN et al. v. WHEELER et al.
• Court: Missouri Supreme Court

145 S.W. 462

MUGAN et al. v. WHEELER et al.

Supreme Court of Missouri, Division No. 2.

March 21, 1912.

1. APPEAL AND ERROR (§ 756) — ASSIGNMENTS OF ERROR.

There is a sufficient compliance with Supreme Court rule 15, requiring appellant to separately allege the errors committed, by setting out in appellant's brief in numerical order the alleged errors, with authorities to support each proposition.

2. EXCEPTIONS, BILL OF (§ 23)—RECORD— BILL—CONTENTS—MOTION.

The part of the bill of exceptions relating to the motions for a new trial recited that "said motions for new trial and rehearing are in words as follows: (Note: Said motions for new trial are set forth in the bill of exceptions, but, as same are printed under abstract of record at pages 15-20, the repetition is omitted here.)" Held, that the reference to the record sufficiently incorporated the motions in the bill of exceptions so as to authorize the review of error in ruling on such motions.

3. APPEAL AND ERROR (§ 549)—BILL OF EXCEPTIONS.

All matters of exception should be contained in the bill of exceptions, and not in the record proper.

4. APPEAL AND ERROR (§ 273)—BILL OF EXCEPTIONS —SUFFICIENCY.

Exceptions saved to one order overruling two motions will preserve for review the court's action upon both motions.

5. APPEAL AND ERROR (§ 681)—BILL OF EXCEPTIONS —ABANDONED PLEADINGS.

The original petition, after being abandoned by the filing of an amended petition, could only be made a part of the record by incorporation in the bill of exceptions, and, if not so preserved, the question of whether the amended petition was a departure cannot be considered.

6. TRUSTS (§ 371)—ENFORCEMENT — ALLEGATIONS OF PETITION—WRITTEN DECLARATION —NECESSITY OF ALLEGING.

The petition in an action to enforce an express trust need not allege the existence of a written declaration of trust, though Rev. St. 1909, § 2868, requires such trust to be evidenced by a writing signed by declarant; the absence of a writing being matter of defense.

7. TRUSTS (§ 20)—EXPRESS TRUSTS — WRITTEN DECLARATION.

That an express trust was created by deeds which were absolute on their face may be shown by a writing separate from the deeds.

8. TRUSTS (§ 43)—EXPRESS TRUSTS—NECESSITY OF WRITING.

Under Rev. St. 1909, § 2868, requiring an express trust to be evidenced by some writing signed by declarant, an express trust can only be created by a writing, and cannot be established by oral evidence.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by R. P. Mugan and others against Nellie Wheeler and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Delaney & Delaney, for appellants. Hamlin & Seawell, for respondents.

KENNISH, J.

This is an appeal from a judgment of the circuit court of Greene county in favor of plaintiffs. Defendants appeal. Plaintiffs and defendants are the children, and heirs of Patrick Mugan, deceased.

It is alleged in the amended petition that Patrick Mugan died on the ____ day of November, 1905; that on the ____ day of ____, 1893, he was the owner of the land in controversy, situated in said county and particularly described in the petition, being a tract of about six acres; that in the year 1893 the said Patrick Mugan conveyed said property to his daughter, Eliza Banfield, one of the plaintiffs herein, in trust, to be held by her for him, and that said Eliza Banfield, at her father's request, conveyed said property to her sister, Molly Mugan, one of the defendants, "to be held in trust by the said Molly Mugan for the use and benefit of said Patrick Mugan and his heirs"; that plaintiffs have requested said Molly Mugan to convey to them their interest in said property, but that she has refused so to do, etc. The prayer of the petition is that the court divest the said Molly Mugan of the title to said real estate, or decree that she holds the same in trust for each and all of the plaintiffs and defendants, and that the court order said real estate sold and the proceeds divided as each party's interest may appear, and for general relief.

1. Respondents raise two preliminary questions which require attention before considering the errors assigned by the appellants.

(a) It is urged that the appeal should be dismissed for the reason that appellants have failed to comply with rule 15 of this court, providing that appellant "shall separately allege the errors committed by the inferior court," etc. An examination of appellants' brief has satisfied us that this objection is not well founded. The brief sets out the alleged errors of the trial court intelligently and in numerical order, with the authorities in support of each proposition, and that is all that is required. Wallace v. Libby, 231 Mo. 341, 132 S. W. 665.

(b) Respondents also contend that "the judgment should be affirmed because appellants have not incorporated their motions for a new trial in the bill of exceptions, as printed in the abstract of the record and filed in this court, nor the order of court, if any, filing and overruling same." What purports to be the bill of exceptions in the printed abstract consists largely of a recital as to orders, motions, and rulings, following which, instead of setting out such order, motion, or ruling, there is a note referring to the abstract of the record proper where they may be found, and they do appear on the page of the record proper as stated....