Peacock v. Nelson

• Decision Date: 31 July 1872
• Citation: Peacock v. Nelson, 50 Mo. 256 (Mo. 1872)
• Parties: WILLIAM PEACOCK, PUBLIC ADMINISTRATOR IN CHARGE OF THE ESTATE OF JACKSON MADDOX, DECEASED, Respondent, v. RICHARD H. NELSON, Appellant.
• Court: Missouri Supreme Court

50 Mo. 256

WILLIAM PEACOCK, PUBLIC ADMINISTRATOR IN CHARGE OF THE ESTATE OF JACKSON MADDOX, DECEASED, Respondent,

v.RICHARD H. NELSON, Appellant.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Jackson Circuit Court.

T. T. Gantt, for appellant.

Maddox's administrator relies upon certain verbal admissions and verbal testimony to show that the deeds were made upon a different consideration than that shown on their face; that they were made, in fact, in order to enable Nelson to sell the land conveyed, in trust that he would pay the net proceeds to Maddox. Such testimony is incompetent under the statute of frauds. (Wagn. Stat. 655, § 3.)

(Section 4 of this chapter contains an exception in favor of such trusts as result by implication of law from the deeds themselves. But this is so clearly out of the scope of the case under examination that no more need be said on that score, and we only consider the application of section 3 to the facts.)

No verbal evidence was admissible to vary, add to, or detract from the deed. (1 Sugd. on Vend. 177; Maigley v. Hauer, 7 Johns. 341-2; Kidd v. Carson, 33 Md. 37; Hogel v. Lindell, 10 Mo. 488-9; Montany v. Rock, id. 506-8.) In the cases of Jackson v. Fish, 10 Johns. 450; Benedict v. Lynch, 1 Johns. Ch. 381; Leonard v. Vredenburg, 8 Johns. 29, the parol evidence was not repugnant to the terms of the deed. Counsel cited generally: Bradley v. Bradley, 24 Mo. 311; Smith's Adm'r v. Thomas, 29 Mo. 307; 31 Mo. 75; Lane v. Ewing, 31 Mo. 75; Flint v. Shelton, 13 Mass. 446; Myers v. Fields et al., 37 Mo. 434; Jennings et al. v. Brizeadine, 44 Mo. 332.

R. Hicks, for appellant.

The verbal testimony offered by respondent, whether to prove a trust or to contradict, vary or modify the contract recited in the deed from Maddox and wife to Nelson for the land, the price of which is in controversy, was incompetent and irrelevant, and the court erred in permitting the same to go to the jury over the objection of appellant. (Morse v. Shattuck, 4 N. H. 229; Hall v. Hall, 8 N. H. 131; Wilkinson v. Scott, 17 Mass. 256; Gully v. Grubb, 1 J. J. Marsh. 388; McCrea v. Purmont, 16 Wend. 460, 475; Davenport v. Mason, 15 Mass. 89; Boyd v. Stone, 11 Mass. 347; Brigham v. Rogers, 17 Mass. 573; Stockpole v. Arnold, 11 Mass. 26; Graves v. Graves, 9 Foster, N. H., 944-5; Farrington v. Barr, 36 N. H. 88.)

This is a collateral action, not founded on the contract recited in the deed, but on a parol agreement made anterior to the execution and delivery of the deed. Now, what right to the land, the price of which is in controversy, was vested by virtue of the deed in appellant? The absolute estate in fee simple. What right and title to the same land was extinguished by that deed? Why, all the right, title and interest Maddox had in the land was transferred to and vested in Nelson. What, then, is proposed to be done by said verbal testimony? Is it to prove an agreement anterior to the deed, independent of and collateral to the deed, not repugnant and contradictory to any of the rights or interests vested in appellant by virtue of said deed? Is it proposed by such verbal testimony to prove such anterior verbal agreement without revesting Maddox with any interest in said land, either legally or equitably? No such thing. It was to show that the deed did not convey what it purported to convey; that Maddox had a resulting trust in the land; that the land was not sold; that Nelson held the land for Maddox, and that Maddox had an equitable interest in the land.

Wm. Douglass, for appellant.

I. The case stated in the petition is one of exclusive equity jurisdiction. It states that a trust was created of said lands for the benefit of Maddox, with Nelson as trustee. (2 Sto. Eq., § 994.)

II. The plaintiff, then, claiming under a trust, must, as the trust is denied in the answer, establish its existence by writing. (Gen. Stat. 1865, ch. 106, § 3; Lane v. Ewing, 31 Mo. 75; Steere v. Steere, 5 Johns. Ch. 1; Irwin v. Ivers, 7 Porter, Ind., 308; Lantry v. Lantry, 51 Ill. 458.) Such trust cannot be proved by parol, although a resulting or implied trust may. But this is not a resulting or implied trust. Lord Hardwicke, in Lloyd v. Spillet, 2 Atk. 150, says that “a resulting trust arising by operation of law, exists: 1st, when the estate was purchased in the name of one person, and the consideration came from another; 2d, when a trust was declared as to part, and nothing was said as to the residue, that residue remaining undisposed of remained to the heir at law.” (1 Greenl. Ev., § 266; 4 Kent, 306; Hogel v. Lindell, 10 Mo. 483; Montany v. Rock, 10 Mo. 506.) There is no pretense of such a resulting trust here, and there is a complete failure to prove any trust by writing. Upon the evidence, then, the plaintiff could not recover, and the instruction to that effect, asked by the defendant at the close of plaintiff's case, ought to have been given. (Harris v. Woody, 9 Mo. 113; Boland v. Mo. R.R., 36 Mo. 484; Jaccard v. Anderson, 37 Mo. 91; Smith v. Hann. & St. Jo. R.R., 37 Mo. 247; Callahan v. Warne, 40 Mo. 131; McCarthy v. Wolf, 40 Mo. 520; Singleton v. Pacific R.R., 41 Mo. 465.)

III. The defendant being charged as trustee, the case was one of exclusive equity cognizance, and was for the court and not for the jury to try. In such case “no action at law will lie; it is a case for the consideration of the court.” (Sturt v. Mellish, 2 Atk. 612; see also Watkins v. Holman, 16 Pet. 59.) The objection of defendant, then, to trying the case before a jury ought to have been sustained, and the motion filed by him to discharge the jury before any evidence was heard, is supported by the best authority.

J. E. Merryman and W. M. Chrisman, for respondent.

In order to recover in this case it was not necessary for the plaintiff to have proven the agreement by any instrument of writing or by written testimony, for the reason that the agreement is not within the statute of frauds. “It is not necessary that the assumpsit for the price of the land should be in writing. This is not required to be written. Besides, the statute has not been construed to apply to executed contracts. And the grantor is entitled to recover on the promise made in consideration of the execution of the deed.” (Gully v. Grubbs, 1 J. J. Marsh. 388; 6 Greenl. 364; 7 Greenl. 179; Roberts v. Tennell, 3 Monr. 247.) Where land is conveyed to the grantee upon an agreement that the grantee shall pay to the grantor the proceeds he may realize out of a re-sale of the land, an action of assumpsit may be maintained on the agreement. (Graves v. Graves, 45 N. H. 323-4; Hall v. Hall, 8 N. H. 129; 36 Me. 413.)

There was no use reserved in favor of Maddox, because he takes the independent promise of Nelson to pay him an amount of money, and because not a word was said that either the land or the use of it should ever return to Maddox. There was no trust and use, because Nelson never intended that the sale should be a conditional one, and defendant sets up none in his answer and joins issues on the consideration for the sale of the land. The only remedy that Maddox or his administrator has is assumpsit on the agreement; and to debar him of that remedy would be committing a fraud on him, which the statute never intended. If the parties had intended to reserve a use for Maddox in the land, they would have done so by putting it in writing. (1 Sugd. Vend. 155, note.)

ADAMS, Judge, delivered the opinion of the court.

The amended petition, upon which this case was tried, substantially stated the facts to be that the plaintiff's testator, Larkin Maddox, in 1865, conveyed in fee to the defendant some 3,000 acres of land situated in Jackson and Cass counties; that although $11,500 is named in the deed as the consideration, there was, in fact, no consideration at all paid or agreed to be paid by the defendant, but the conveyance was made to the defendant merely for the purpose of enabling him to act as the testator's agent in the sale of the lands, and that the express agreement between them was that he was to sell the lands and account to the testator for the proceeds; that the defendant did sell all the lands except 450 acres, and realized a large amount of money; that on the 31st of August, 1865, the defendant had a settlement with the testator, and acknowledged upon such settlement that he had in his hands $19,410 of the proceeds of the sale of these lands.

The petition then alleges that, notwithstanding the agreement in relation to the sale of the lands, the defendant, since the death of the testator,...