Paul v. Chouteau

• Decision Date: 31 March 1851
• Citation: 14 Mo. 580
• Parties: RENE PAUL ET AL. v. HENRY CHOUTEAU ET AL.
• Court: Missouri Supreme Court

14 Mo. 580

RENE PAUL ET AL.

v.HENRY CHOUTEAU ET AL.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT

SPALDING, for Appellees.

I. The decree held Rene Paul accountable as trustee who had violated his trust, and it was right to make him account for the value of the property held by him in trust, and sold by him, at the value for which he sold at the least. A trustee is not at liberty to act or contract for his own benefit in regard to the trust property; and if “he fail in the performance of his duty, or exceed, or prevent the persons with which he is interested, he will become responsible:” 8 Law Lib., Willison's Trustees, p. 167; also p. 171--“whenever the trustees violate their duty, either by fraudulent alienation, or in any other manner, they will be guilty of a breach of trust, and a court of equity will compel them to reimburse cestui que trust for any loss sustained.” Also, pp. 187-8; Lewin on Trusts, p. 630 (22 Law Lib.) In event of breach of duty by trustee, the cestui que trust is entitled to file his bill against trustee--to enforce a compensation for the loss the trust estate has sustained;” p. 634, that if the trustee is guilty of misconduct, and loss follows, he is not acquitted, even if he could show that the loss would have happened if he had not acted improperly--and he will not be liable for more than he has actually received, except in cases of supine negligence or willful default: 2 Story's Eq. § 714; p. 104, § 794; p 104, § 795, as to compensation: p. 228, §§ 960-1-2, &c., as to jurisdiction in cases of trust: p. 503, § 1258; p. 506, §§ 1261-2-3, as to the violation of trusts--that the profits go to cestui que trust; p. 508, §§ 1264-5; 2 Johns. Ch. R. 62--where trustee sold land contrary to his duty as trustee, he is answerable for value, not at time of sale, but at time of filing bill.

II. The trust could be proved by oral testimony: 1 Johns. Ch. . 582, 590; 2 ibid, 405; 4 Johns. Ch. R. 167--parol evidence admissible to prove an absolute deed was intended as a mortgage (citing various authorities); 6 Johns. Ch. R. 417, to same effect. Cowen & Hill's notes, part 2, pp. 1488-9; 2 Black's 440; 2 Story's Eq. 448, § 1201; 1 Johns. Ch. R. 582, Boyd v. McLean and Wife. This case is on the point, and discusses the doctrine and considers the authorities; holds parol proof admissible against the face of the deed, and the answer of the defendant, to prove the absolute deed to have been in trust; 1 Watts, 163, devise to one who represented to testator that he would hold it in trust for use of another. This was a trust and could be proved by parol, &c.: 6 Watts & Serg. 97.

III. But on this record, it does not appear but that the trust was proved by deed or written evidence. The decree recites the facts substantiated by evidence, but does not indicate the nature of the testimony, and the presumption is, that the court below did right. If there was error in the admission of incompetent testimony, the record does not show it, as there was no bill of exceptions taken.

IV. The alleged error, that the appellant was interested in the decree to the amount of $_____, and that execution issued for the whole without making this deduction, shall not, if true, vitiate the residue of the decree. No injustice has been done, because, as soon as collected, complainant was entitled to recover his share back. He had a right to make the deduction and withhold his own share. If he did not do this, which he probably did, then he had a right to demand payment of it immediately. It does not lie in the mouth of a trustee who has alienated trust property in violation of his trust and endeavored to keep the whole proceeds for his own individual benefit, to object, even if the court below had ordered his share to be divided among the cestuys que trust.

V. It is objected that the defendant's cestuys que trust, should have ed a cross-bill.

Answer: It is a proceeding, in its nature, of partition. The decree ni an admission by those defendants, that they were respectively interested in the land and proceeds, as set forth in the bill. The court has jurisdiction of the matter by the bill, of some of those interested, who have the right to have the affair closed up, and it cannot be closed up piece-meal; the court has to pass on the rights of all, to do justice to one of them; and, in justice to the trustee, it would not proceed to relieve one of the cestuys que trust, without acting on the whole subject matter and disposing of the whole affair: 3 Law Lib., Albreat on Partition, 97, 98, &c., shows that in equity, in proceedings in partition, any one concerned may file the bill, making the other parties, and the proper course is to direct a reference to the matter, to ascertain what are the estates and interests of the plaintiffs and defendants respectively, and if it appears that th...