Rector v. Goodloe
| Decision Date | 06 April 1923 |
| Parties | A. F. RECTOR, Administrator of Estate of RACHEL A. DENNIS, v. DAVIS N. GOODLOE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Reversed.
R. M Reynolds, A. R. James, Harvey & Bellamy, Duggins & Duggins Roy Williams, Lamm, Bohling & Lamm and A. B. Hoy for appellants.
(1) The decree is erroneous and is unsupported by any valid testimony, and this is so because: (a) The trust alleged and sought to be proved by parol was not founded on fraud accident, surprise or mistake. It was, hence, an express trust. (b) An express trust as to real estate cannot be created, manifested or proved except by writing signed by the persons sought to be charged therewith. To sustain both propositions we cite: R. S. 1919, sec. 2263; Woodford v. Stephens, 51 Mo. 443; Hammond v. Cadallader, 29 Mo. 166; 1 Perry on Trusts (2 Ed.) secs. 76, 79, 134, 162; Weiss v. Heitcamp, 127 Mo. 23; Rogers v. Ramey, 137 Mo. 598; Lehey v. Witte, 123 Mo. 207; Mugan v. Wheeler, 241 Mo. 376; Grindling v. Reyhl, 15 L. R. A. (N. S.) 466; Bender v. Bender, 220 S.W. 929; Lafayette Street Church v. Norton, 39 L. R. A. (N. S.) 906, note; Ferguson v. Robinson, 167 S.W. 447; Curd v. Brown, 148 Mo. 82; Hillman v. Allen, 145 Mo. 638; Peacock v. Nelson, 50 Mo. 256; Mansur v. Willard, 57 Mo. 347; Hunter v. Briggs, 254 Mo. 28; Thompson v. Thompson, 211 S.W. 52; Crawley v. Crafton, 193 Mo. 431; Allen v. Jessup, 192 S.W. 720; Heil v. Heil, 184 Mo. 665; 26 R. C. L. 1202, sec. 41. (2) We admit that Sec. 2263, R. S. 1919, applies alone to real estate and that a trust in personal property may be created and proved by parol. Northrup v. Burge, 255 Mo. 654; Carroll v. Woods, 132 Mo.App. 501; Pitts v. Weakley, 155 Mo. 135. But respondent's case does not prosper on the foregoing pospositions, because: (a) To establish a trust for judicial purposes in either personal property or real estate the evidence must be so clear, cogent, strong, unequivocal, definite and positive as to leave no room for doubt in the mind of the chancellor. Forrester v. Scoville, 51 Mo. 269; Ringo v. Richardson, 53 Mo. 385; McFarland v. LaForce, 119 Mo. 585; Reed v. Painter, 129 Mo. 674; Curd v. Brown, 148 Mo. 82; Brinkman v. Sunken, 174 Mo. 709; McKee v. Higbee, 180 Mo. 300; Reed v. Sperry, 193 Mo. 167; Smith v. Smith, 201 Mo. 547; Easter v. Easter, 246 Mo. 409; Ferguson v. Robinson, 258 Mo. 113; Davis v. Cummins, 195 S.W. 754; Thompson v. Pinnell, 199 S.W. 1014; Johnson v. Jameson, 209 S.W. 924. (b) The terms of the alleged trust (whether it was created by the alleged original agreement of 1880, or the division agreement of 1911, or both) stood alone on the testimony of John Austin Dennis and Rachel Dennis, and their testimony, even if admissible, which we deny, in no sense reached the requisite high standard of quality and character called for in the authorities cited in subdivision "a" under this head. (3) The court erred in admitting testimony on behalf of respondent. Davis P. Dennis being dead, neither John Austin Dennis nor Rachel A. Dennis were competent to testify (as they were permitted to do over our objections) to the terms of the alleged contract in 1880 or the division contract of 1911. R. S. 1919, sec. 5410; Meier v. Thieman, 90 Mo. 433; Allen v. Jessup, 192 S.W. 720; Angell v. Hester, 64 Mo. 142; Taylor v. George, 176 Mo.App. 215; Edmonds v. Scharff, 279 Mo. 78; Leiber v. Leiber, 239 Mo. 1; Ham L. & Z. Co. v. Lead Co., 251 Mo. 721. Prior to the amendment of Sec. 5410, R. S. 1919, to-wit, March 16, 1887, it was held that under the provision of said section, as it then stood, disqualifying one from testifying in his own favor in any case where the other original party to the contract or cause of action in issue and on trial was dead (whether the witness was a party to the record or not), if his testimony was beneficial to the witness, he was disqualified. Meier v. Thieman, 90 Mo. 433; Thieman v. Meier, 25 Mo.App. 306; Bank v. Hunt, 25 Mo.App. 170; Building Assn. v. Kleinhoffer, 40 Mo.App. 388. The amendment of March 16, 1887, rendered John Austin Dennis incompetent as a witness, not only in his own favor, but in favor of Rachael, who claimed under him. Laws 1887, 287; Sec. 5410, R. S. 1919; Weiermueller v. Scullin, 203 Mo. 470; Lieber v. Lieber, 239 Mo. 19, 20. (4) It is a favorite doctrine of the law that the reason of the law is the life of the law and that when the reason of the law fails the law ceases. Courts have been fond of remarking on the difficulty of applying the statute now in hand so as to work out a right result in each particular case; and in no class of cases is the reason of the law more diligently sought after than in those cases asking for an application of the statute on witnesses. In the instant case there could be no greater mistake made than to consider John Austin Dennis as on one side of a contract and Rachael Dennis on the other. We admit that if there was nothing in the case but that proposition, then the death of Davis Dennis would not disqualify Austin Dennis as a witness. A long line of cases so hold, beginning with an early case. Fulkerson v. Thornton, 68 Mo. 468. But the two contracts in question are no such contracts. In the 1880 contract, under the testimony of John and Rachael, John first contracts with Davis, his brother, to the effect that they would make a proposition to Rachael and on the terms of the contract they would propose to her. The two brothers then contract with their sister. This was a tripartite contract with three corners to it. The same process was gone through within the division contract of 1911. The brothers first contract with each other as to the terms of the division. They next approach their sister, speaking through John, and they contract with her to accept these terms. In all this John was individually interested in favor of the sister in sustaining this division, for the very obvious reason that it relieved John from the burden of the original contract and substituted Davis in his shoes. In this case the two live parties, Rachael and John, unite their fortunes and jointly testify against Davis, who is dead. (5) On close analysis it becomes plain that the gist of the case is to specifically perform the contract of 1911. Respondents must therefore bring themselves within the established equitable rules regulating specific performance. The Statute of Frauds is not pleaded specifically in the answers, but where there is a general denial, as here, it is not necessary to plead the Statute of Frands in order to invoke it. Lessley Bros. v. Fruit Co., 165 Mo.App. 201. The equitable rules governing the remedy of specific performance are well known. Thus, 1. The conversation relied upon as proof of the contract should not be too ancient, loose or casual. 2. The contract should be fair, and just, not an unconscionable bargain. 3. The terms of the contract should be so clear and definite as to free it from ambiguity. 4. The proof should show that the very contract counted on in the bill was made. 5. Performance must be shown as far as practical and the act relied on to show it must be unequivocal, that is, referable alone, to the very contract sought to be performed. 6. And a mere testamentary disposition to devise by will or a mere benevolent disposition to convey by deed by way of gift or reward for services not plainly provoked by and bottomed on the contract in suit will not take the case out of the statute. Forrister v. Sullivan, 231 Mo. 373; Woodard v. Stowell, 222 S.W. 820. The proof must leave no reasonable doubt that the contract was made. McCune v. Graves, 273 Mo. 589. The proof in this case on behalf of respondent, even if the court should consider the oral testimony of John and Rachael in this behalf, does not measure up to the high standard required by the foregoing accepted rules, hence the decree should be reversed on this ground also.
A. F. Rector and Sebree & Sebree for respondent.
(1) The contract of 1880 is valid and will be enforced in equity. Alexander v. Alexander, 150 Mo. 579; McQuitty v Wilhite, 247 Mo. 163; McGinnis v. McGinnis, 274 Mo. 297; Lambert v. Railroad, 212 Mo. 720; Walsh v. Walsh, 285 Mo. 181, 211; Bless v. Jenkins, 129 Mo. 339. (2) The division of the property in 1911 was an amicable partition with a view of dissolving the partnership. No new title passed by the deeds. Adams v. Carey, 226 S.W. 833; Powell v. Powell, 267 Mo. 117; Whitsett v. Wamack, 159 Mo. 23; Palmer v. Alexander, 162 Mo. 127. (3) In cases of the character here the Statute of Frauds and in relation to Express Trusts do not govern. Bryan v. McCaskill, 284 Mo. 602; Condit v. Maxwell, 142 Mo. 266; Sutton v. Haydon, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37; Laughlin v. Laughlin, 237 S.W. 1024; Leahy v. Witte, 123 Mo. 207; Slowey v. McMurray, 27 Mo. 118; Richardson v. Champion, 143 Mo. 538; Browne on Statute of Frauds, 96a; Larrick v. Heathman, 231 S.W. 975; Phillips v. Hardenburg, 181 Mo. 463. (4) John Austin Dennis and Rachel Dennis were competent witnesses. Fulkerson v. Thornton, 68 Mo. 468; Vandergrif v. Swinney, 158 Mo. 527; Williams v. Perkins, 83 Mo. 379; State v. Wooley, 215 Mo. 685; Short v. Thomas, 178 Mo.App. 413; Birdsall v. Coon, 157 Mo.App. 448; Banking Co. v. Loomis, 140 Mo.App. 74; Denny v. Brown, 193 S.W. 552; Elsea v. Smith, 273 Mo. 396, 407; Kinlen v. Railroad, 216 Mo. 174. (a) Appellant's objection to the competency of John Austin Dennis on the ground of interest was made for the first time in this court, and would therefore not be allowable, even if such objection were good, which respondents deny. Bragg v. Railway, 192 Mo. 342; St. Louis v. Railroad, 248 Mo. 25. The objections in the lower court were that Davis P. Dennis was dead...
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