Powers v. Grand Lodge of Ancient, Free and Accepted Masons of State of Missouri

• Decision Date: 31 December 1940
• Citation: 146 S.W.2d 895,236 Mo.App. 7
• Parties: WILLIAM POWERS, MAUDIE SMITH, LILLIE DUNAWAY, DEWEY LEATH, VIRGIE JONES, AND BENNIE WALRAVEN, APPELLANTS, v. GRAND LODGE OF ANCIENT, FREE AND ACCEPTED MASONS OF THE STATE OF MISSOURI, A CORPORATION, THE MASONIC HOME OF MISSOURI, A CORPORATION, THE GRAND LODGE OF INDEPENDENT ORDER OF ODDFELLOWS, OF THE STATE OF MISSOURI, RESPONDENTS
• Court: Missouri Court of Appeals

146 S.W.2d 895

236 Mo.App. 7

WILLIAM POWERS, MAUDIE SMITH, LILLIE DUNAWAY, DEWEY LEATH, VIRGIE JONES, AND BENNIE WALRAVEN, APPELLANTS, v. GRAND LODGE OF ANCIENT, FREE AND ACCEPTED MASONS OF THE STATE OF MISSOURI, A CORPORATION, THE MASONIC HOME OF MISSOURI, A CORPORATION, THE GRAND LODGE OF INDEPENDENT ORDER OF ODDFELLOWS, OF THE STATE OF MISSOURI, RESPONDENTS

Court of Appeals of Missouri, Springfield

December 31, 1940

Rehearing denied January 27, 1941.

Appeal from the Circuit Court of New Madrid County.--Hon. Louis H Schult, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Zal B Harrison and Hal H. McHaney for appellants.

(1) Plaintiffs' petition states a good cause of action for equitable relief upon the theory of an implied trust. (a) By the express direction of the testator, J. Logan Busby the residuary devisees were directed to pay to plaintiffs the charges in question, and the same constitute a charge upon the real estate involved in this suit. 69 C. J., 1182, 1183, 1206; Murphy v. Carlin, 113 Mo. 113; Noe v. Kern, 93 Mo. 367; Bakert v. Bakert, 86 Mo.App. 83; Brooks v. Erskine, 24 Mo.App. 296. (b) Such charges were not removed by the purported foreclosure of the deed of trust in favor of the Prudential Insurance Company. Upon the residuary devisees' taking possession of the lands in question and by accepting the rents and profits therefrom, they thereby obligated themselves under the law to pay off and discharge the outstanding mortgage debt. R. S. Mo. 1929, sec. 523, Ann. Stat., p. 317; Gales v. Rice, 320 Mo. 580, 8 S.W.2d 614; Hannibal Tr. Co. v. Elzea, 315 Mo. 485, 286 S.W. 371, 378; Peck v. Fillingham's Estate, 199 Mo.App. 277, 202 S.W. 465; Savings Tr. Co. of St. Louis v. Beck (Mo. App.), 72 S.W.2d 282; Wood v. Ogden (Mo. App.), 97 S.W. 610. (c) By reason of possession such residuary devisees and their assignee, Masonic Home of Missouri, occupied a relationship of trust to plaintiffs, and by no act of theirs could the interest of the plaintiffs in the lands in question be legally divested. Witcher v. Hanley, 299 Mo. 696, 253 S.W. 1002; Gerhardt v. Gerhardt (Mo.), 213 S.W. 31. (d) The deed of trust under which the Masonic Home of Missouri purportedly acquired title, having been paid off, became a void instrument, and the trustee had no power of sale whereby the legal title could be vested in defendant Masonic Home of Missouri. 41 C. J. 785, sec. 891; Jackson v. Johnson, 248 Mo. 704, 154 S.W. 766; Pease v. Pilot Knob Iron Co., 49 Mo. 124; McNair v. Picotte, 33 Mo. 57. (e) The plaintiffs are entitled to have a constructive trust declared against the lands in question as against the present owner, Masonic Home of Missouri. Witcher v. Hanley, 253 S.W. 1002, 1005; Picot v. Page, 26 Mo. 415. (2) The Statute of Limitations did not commence to run against the plaintiffs during the life estate of Ben F. Busby. Souders v. Kitchens (Mo.), 124 S.W.2d 1137; State ex rel. Farley v. Welch et al. (Mo. App.), 162 S.W. 637. (a) Plaintiffs' action being to enforce a constructive or implied trust upon the lands in question, is governed by the ten-year Statute of Limitations, and is, therefore, not barred. R. S. Mo. 1929, secs. 850, 861; Meyer v. Wise (Mo.), 133 S.W.2d 321; Zeitinger v. Annuity Realty Co., 28 S.W.2d 1030; Faris v. Moore, 256 Mo. 132, 165 S.W. 314; Hunter v. Hunter, 50 Mo. 445; Burdette v. May, 100 Mo. 20; Newton v. Rebenack, 90 Mo.App. 650.

J. M. Haw and James Haw for respondents.

(1) The Supreme Court does not have jurisdiction; title to real estate is not involved and the amount sued for is less than $ 7,500. Mack v. Eyssell, 332 Mo. 671, 59 S.W.2d 1049, 1051; Chouteau v. City of St. Louis, 331 Mo. 1064, 8 S.W.2d 299; Jewell Realty Co. v. Dierks, 322 Mo. 1064, 18 S.W.2d 1043, 1045. The will merely gave plaintiffs right to a personal action against the two Grand Lodges, if it gave them any right at all, and created no charge against the lands. 69 C. J. 1182, sec. 2504, pp. 1184-1185, sec. 2506; Drumheler v. Haff, 23 Mo.App. 161; French v. Mastin, 19 Mo.App. 614; Josephine Hospital Corporation v. Modoc Realty Co. (Mo.), 270 S.W. 638. (2) The petition does not state a cause of action against the defendants, or any of them. National Bank of St. Louis v. Carleton Dry Goods Co., 67 S.W.2d 69. Even had the will placed a charge on said lands, the sale under the deed of trust would have conveyed title free from such charge. R. S. Mo. 1929, sec. 141 (1 Anno. St., p. 88); R. S. Mo. 1929, sec. 189 (1 Anno. St., p. 121). (a) This is an attempted equitable action. It does not charge that defendants, the two grand lodges, are insolvent, or that plaintiffs have no adequate remedy at law, or facts from which such conclusions can be drawn. The petition is, therefore, insufficient. Buckley v. Maupin (Mo.), 125 S.W.2d 820, 824; Davidson v. Dockery, 179 Mo. 687, 695. (b) The petition alleges that the estate of testator was duly administered and that all specific bequests in the will were paid in full by the executor of the estate; that the lands are still subject to the bequests in the will in favor of plaintiffs; that in January, 1922, the two Grand Lodges paid off and discharged the balance then owing on the deed of trust from the testator to the Prudential Insurance Company in the sum of $ 3,100, and that on March 3, 1924, there was then a balance still owing upon the Prudential Insurance Company note in the sum of $ 2,600.55. The petition, containing such contradictory substantive allegations, is not good. 1 Woerner's American Law of Administration (3 Ed.), 605, sec. 179; 1 Houts' Missouri Pleading and Practice, p. 236, sec. 122; Koewing v. Building & Loan Ass'n, 38 S.W.2d 40, 42-43; Rutledge v. The Mo. P. Ry. Co., 110 Mo. 312, 318. (3) If plaintiffs had any cause of action it was barred by the five-year Statute of Limitations. Josephine Hospital Corporation v. Modoc Realty Co., 270 S.W. 638, 641; Howard County v. Moniteau Co. (Mo.), 78 S.W.2d 96, 98; R. S. Mo. 1929, sec. 862, 2 Anno. St., p. 1143; Lively v. Tabor (Mo.), 107 S.W.2d 62, 66. (a) This suit is not an action on a writing for the payment of property or money within the ten-year Statute of Limitations, since it contains no promise on the part of the defendants, and any obligation thereunder could only arise upon proof of extrinsic facts. Therefore, it comes under the five-year Statute of Limitations. R. S. Mo. 1929, sec. 862, 2 Anno. St., p. 1143; Parker Washington Co. v. Dennison, 183 S.W. 1041; Lively v. Tabor, 107 S.W.2d 62, 66; Brown v. Irving, 269 S.W. 686.

SMITH, J. Tatlow, P. J., and Fulbright, J., concur.

OPINION

SMITH, J.

--This cause was commenced on May 20, 1938, by filing petition in the office of the Clerk of the Circuit Court of Mississippi County, Missouri. Process was duly issued and served, and said cause was returnable to the July Term, 1938, of the Circuit Court of Mississippi County.

Thereafter, upon application of plaintiffs, change of venue was granted to the Circuit Court of New Madrid County.

Thereafter, defendants filed motion for security for costs. Where-upon defendants made application and were granted permission to sue as poor persons.

On September 24, 1938, at the regular September Term, 1939, of the Circuit Court of New Madrid County, plaintiffs filed their amended petition in said cause, said petition, as amended, being in words and figures (caption and signatures omitted) as follows, to-wit.

"Come now the plaintiffs and allege that William Powers is a resident of Mississippi County, Arkansas; that Maudie Smith Lillie Dunaway, Dewey Leath, Virgie Jones and Bennie Walraven are the sole surviving heirs at law of Clarinda Powers; that plaintiffs Lillie Dunaway, Dewey Leath, Virgie Jones and Bennie Walraven are all residents of Mississippi County, Arkansas; that Maudie Smith is a resident of Pemiscot County, Missouri; that defendant, Grand Lodge of the Ancient Free and Accepted Masons of the State of Missouri is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri relating to benevolent, religious, scientific and educational associations; that the defendant Masonic Home of Missouri is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri relating to benevolent, religious, scientific and educational associations; that the Grand Lodge of Independent Order of Oddfellows of the State of Missouri is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri relating to benevolent, religious, scientific and educational associations; and as such corporations the defendants herein are entitled to sue and be sued in the courts of Missouri; and plaintiffs, for their cause of action against the defendants state that on or about the day of March, 1916, J. Logan Busby died testate in the County of Mississippi and State of Missouri; that due proof of his will was made in the Probate Court of Mississippi County, Missouri, and said will was admitted to probate on the 13th day of March, 1916, that O. W. Joslyn of Charleston, Missouri, was appointed as executor of the estate of J. Logan Busby and thereafter duly qualified as such executor. That said last will and testament of J. Logan Busby was in words and figures as follows, to-wit:

"'I, J. Logan Busby of Mississippi County, Missouri, do make and publish this my last will and testament, hereby revoking all former wills by me made.

"'First: I direct that my executor hereinafter named, dispose of all personal property which I may own at the time of my death, and that the proceeds arising from said sale and from the Collection of any insurance policies which I may have on my life, be used as follows:

"'A I direct that all my just debts of...