Paul v. Fulton

• Decision Date: 31 March 1857
• Citation: 25 Mo. 156
• Parties: PAUL et al., Appellants, v. FULTON et al., Respondents.
• Court: Missouri Supreme Court

25 Mo. 156

PAUL et al., Appellants,

v.FULTON et al., Respondents.

Supreme Court of Missouri.

March Term, 1857.

1. To constitute a person a bona fide purchaser for value without notice, within the rule that protects such a purchaser, the purchase money should be paid before notice is received.

2. A., holding lands in trust, devised them to his executor with direction to sell and convert into personal property; the executor sold and

conveyed the same; held, in a suit against the purchaser and the executor to establish the trust, that the heirs of A. were not necessary parties.

3. Where the St. Louis Land Court rightfully obtains jurisdiction in a case, although the facts afterwards disclosed would have authorized a proceeding in another court, the Land Court should furnish relief.

Appeal from St. Louis Land Court.

This was a suit brought by the heirs of Gabriel Paul against William Fulton and Marshall Brotherton, the latter the executor of the will of René Paul, deceased. Plaintiffs state in their petition that on the 20th of August, 1838, they, together with their father, Gabriel Paul, deceased, were the owners of one-half of a certain tract of land, the other half being owned by René Paul and his children; that, by virtue of a certain decree of partition, said tract was sold by commissioners appointed for that purpose on the 20th of August, 1838, and by agreement between the said Gabriel Paul and René Paul, the said René became the purchaser at said commissioner's sale for the joint benefit of himself and the said Gabriel Paul, and the deed for said land was made to René Paul by said commissioners for the benefit of himself and the said Gabriel Paul; that at the said sale the said René Paul paid no money for said land, but that the same was purchased by him in his own name for the joint benefit of himself and the said Gabriel; that no part of said consideration was ever paid to these plaintiffs; that plaintiffs are the only heirs of Gabriel Paul; that René Paul, by his last will, devised all his estate, real and personal, to his executors, Marshall Brotherton and Archibald Gamble, of whom only the first named qualified; that said Brotherton, by virtue of the power conferred upon him by said will, conveyed one-half of said tract of land to William Fulton, and the other half to the trustee of Louise Gosnell, wife of George W. Gosnell; that said Louise and her trustee conveyed their half to the said Fulton; that said Fulton and said Louise Gosnell, who was daughter and heir of René Paul, had full notice of the equitable title of plaintiffs at the date of their purchases. “Plaintiffs, therefore, pray that said defendant, Fulton, be declared a trustee for the plaintiffs for one-half of said tract of land, and that he be required to convey to the said Estelle, Adolphe and Therese, the said one-half of said land. If, upon trial, it shall appear that said Fulton has been a purchaser of any part of said land, without being chargeable with notice, then the plaintiffs pray that for such portion the said Brotherton be required to account for and pay to the plaintiffs the same proportion of money for which he sold the said land, to-wit: $5,150.80.

Fulton, in his answer, denies all knowledge of the alleged purchase by René Paul, for the joint benefit of himself and Gabriel Paul; admits the purchases alleged from Brotherton and Mrs. Gosnell, and her trustee; but “denies that at the time he made said purchase he had any notice whatever of any title of plaintiffs to said land, either legal or equitable.”

Brotherton, in his answer, denied all knowledge of the trust.

The cause was tried by the court sitting as a jury; its finding of the facts is set forth below in the opinion of the court. A motion for a review, filed in behalf of plaintiffs, was overruled. Service of process was had in this suit upon defendant, Fulton, August 2d, 1855, and upon Brotherton August 9th, 1855.

Whittelsey, Glover & Richardson, for appellant.

I. Gabriel Paul, in his life-time, was the equitable owner of one-half the land, and was entitled to a conveyance therefor. This equity descended on the plaintiffs, and they can enforce it against any one holding the legal title who is chargeable with the trust.

II. The legal title is in Fulton, and he ought to be compelled to convey one-half the land to the plaintiffs, unless he can shield himself under the guard the law furnishes to the bona fide purchaser for a valuable consideration without notice. Fulton does not by his answer or the proof secure the protection of a purchaser without notice of the outstanding equity. Notice before the payment of the purchase money is equivalent to notice before the contract. (7 Mon. 597; 2 White & Tud. L. Cas. 77; Halsa v. Halsa, 8 Mo. 303; 8 Wheat. 421; 7 Johns. Ch. 65; 1 Johns. Ch. 288; 3 Atk. 304; Boone v. Chiles, 10 Pet. 211; 4 Dess. 287.) Mrs. Gosnell was a volunteer. She paid nothing, and receiving a portion of the land as a part of her distributive share of her father's estate, she took it with all the equities charged upon it. Taking property in payment of a precedent debt does not make the buyer an innocent purchaser as against the holder of a prior equity. (Rowan v. Adams, Sm. & Marsh. Ch. 49; 4 Scam. 390; 4 Paige, 215.)

III. Proper parties were before the court, and if they were not, the court ought not, for that reason, to have dismissed the cause. (19 Mo. 403; Pract. Act, 1849, art. 3, § 10.) The plaintiffs, being heirs of Gabriel Paul, were proper parties plaintiff. Fulton was a proper and necessary party defendant. Under the Code of 1849 a suit should not be dismissed for want of proper parties, provided there is one proper plaintiff and one proper defendant. René Paul, by his will, directed that his real estate should be converted into money by his executor, and as to his heirs, it should be treated as chattels, and represented by his executors. Brotherton was a proper party, and for another reason, that complete justice might be done to all the parties, which might require Brotherton to surrender to Fulton the notes which represented one-half the purchase money.

T. T. Gantt, for respondent.

I. The petition is in the alternative, and asks for one of two forms of relief, which is inadmissible. (Robinson v. Rice, 20 Mo. 229).

II. In the hypothesis that plaintiffs are entitled to recover land, they are entitled to recover against the legal tenant, Fulton; and the Land Court has jurisdiction, but Brotherton is not a proper party to the action, and the heirs of René Paul are.

III. In the hypothesis that is suggested secondly in the petition, the personal representatives of Gabriel Paul will be perhaps entitled to a sum of money, but they are not parties to the record, and the Land Court has no jurisdiction of a money demand; so that in no case can the Land Court give the required relief.

IV. The court found that Fulton was a purchaser for value without notice. The land then is out of the reach of the heirs of Gabriel Paul; for in this case the petition waives all claim to the land, and asks for money only. Fulton paid to Brotherton one-half the purchase money for the moiety which he bought in 1852, and has paid Gosnell, making three-fourths of the money paid by Fulton.

RYLAND, Judge, delivered the opinion of the court.

In this case the court below should have sustained the plaintiffs' motion to review the finding of the facts made by the court in respect to the question of the trust in favor of the plaintiffs, and also in regard to notice by Fulton. The court omits to find anything in respect of the interest, title or estate of the plaintiffs, the heirs of Gabriel Paul, in and to the lands, or the money arising on its sale. The finding shows “that in June, 1837, René Paul and his children, Gabriel R. Paul, Edmund W. Paul, Emilie Paul, Louise Paul, Tullia Paul, and Julia S. Paul, were tenants in common with Gabriel Paul and his children, Adolphe Paul, Estelle Paul, and Therese, in the lands and premises in dispute; that certain proceedings were had in a suit in partition between these tenants in common, and that the land was sold by commissioners appointed for that purpose, and that René Paul became the purchaser in August, 1838; that René Paul received a deed from the commissioners for the land; that Paul paid no money to the commissioners for the land, except the costs of the proceedings in partition; that at the time of the execution of the deed by the commissioners to said Paul, it was understood that he was to furnish to them the receipt of himself and his brother Gabriel for the amount of the purchase money of said land; that one-half of the amount paid by said René...