Richardson v. Champion
| Decision Date | 01 April 1898 |
| Parties | Richardson, Administrator of Simpson, Appellant, v. Champion et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
R. M Nichols for appellant.
(1) There is no evidence that the $ 1,175, or any part thereof was paid into Simpson's hands before or contemporaneous with the purchase of Simpson in his own name, as charged in the answer, and, therefore, "there was no feoffment without consideration, to result to the use of the feoffor, and there could be no resulting trust." Perry on Trusts, secs. 133, 135; Kelly v. Johnson, 28 Mo. 251; Sells v. West, 125 Mo. 621. (2) If it could be gathered from the evidence that Simpson and DuBois agreed that Simpson should buy in the property, pay his own money for it, and thereafter convey the property to DuBois upon his repaying Simpson the money expended, such a contract would be an express trust, and void under the statute of frauds if not in writing, and could not be proven by parol in the face of DuBois' deed to Simpson. Hammond v. Cadwallader, 29 Mo. 166; Taylor v. Von Schraeder, 107 Mo. 206. (3) If such contract was entered into between Simpson and DuBois, DuBois' present possession is not referable to it and consequently no part performance of the claimed contract. He had possession before the alleged agreement and he continued in possession. His present possession, in the absence of proof that he took possession, under the contract set up in the answer, is referable to his former occupation of the premises. Emmel v. Hayes, 102 Mo. 186; Taylor v. Von Schraeder, 107 Mo. 228. (4) If such contract was made, payment of $ 600 as a part, or payment of all the consideration, is not sufficient part performance in itself of a parol contract to convey real estate as will satisfy the statute of frauds. Parke v. Leewright, 20 Mo. 85. (5) The testimony conclusively shows that if there was any agreement that Simpson should hold the property in trust for DuBois, it was upon a trust, the object of which was to cover up and conceal his property from the judgment creditors, shown to exist, and such trust being a fraud, it can not be enforced. Taylor v. Von Schraeder, 107 Mo. 228; Larimore v. Tyler, 88 Mo. 668; Scudder v. Atwood, 55 Mo.App. 512.
Alex. Young, M. C. Brown and J. E. & J. F. Merryman for respondents.
(1) The court having tried the case, sitting as a jury, upon the law and the evidence, and rendered judgment for defendant, this court will not review the testimony. Hill v. Kingsland, 131 Mo. 648; Thies v. Garbe, 88 Mo. 146; Parkinson v. Coplinger, 65 Mo. 290; Harrison v. Bartlett, 51 Mo. 170; Welson v. Railroad, 46 Mo. 36; Gould v. Smith, 48 Mo. 43; Douglass v. Orr, 58 Mo. 573; McHugh v. Meyer, 61 Mo. 334; Hammons v. Renfrow, 84 Mo. 332. (2) Plaintiff failed to show any authority on the part of the trustee to sell and convey the real estate in controversy. It was incumbent on the plaintiff to produce the deed of trust in order that the court might determine as to the authority of the trustee to sell -- this he failed to do; but only introduced the trustee's deed to Simpson. The recitals in the deed of the trustee are not evidence to establish the power to make the sale. The deed of trust executed by DuBois could only establish the power to sell. The recitals in the trustee's deed are prima facie evidence that he complied with the power and authority given in the original instrument, and no more. Vail v. Jacobs, 67 Mo. 130; White v. Stevens, 77 Mo. 452; Clarkson v. Stanchfield, 57 Mo. 573; Chapman v. Daugherty, 87 Mo. 617. (3) The answer of defendant sets up an agreement made between Jeptha H. Simpson and the defendant, DuBois, by the terms of which Simpson before the sale made under the deed of trust, that Simpson was to purchase the real estate at the trustee's sale and take a deed to himself and thereafter hold the premises for the sole use of the defenda, DuBois, and in pursuance of said agreement, Simpson did purchase the real estate at said sale, and took the deed to himself for the benefit of defendant, DuBois, Simpson paying the purchase money, and in pursuance to said agreement DuBois did pay Simpson the full amount of the purchase money paid by Simpson. That defendant continued to remain in possession of the premises, holding the same in his own right, and not as the tenant of Simpson. Plaintiff takes the position that the agreement not being in writing, is within the statute of frauds and void. The case of Rose v. Bates, 12 Mo. 30, is decisive. Heirs v. Fulsome, 16 Mo. 543; Peacock v. Nelson, 50 Mo. 256; Damschroeder v. Thias, 51 Mo. 100. (4) In Murry v. Freeman, 44 Mo. 522, the court says, "the fraudulent conveyance can not be impeached by the administrator, and he is bound by the action of the deceased." Perry v. Calvert, 22 Mo. 361; McLaughlin v. McLaughlin, 16 Mo. 242.
On the first day of March, 1890, Stafford DuBois, one of the defendants, being the owner and in possession of lot number 11 in block number 2 of the first division of the Rankin estate in city block 2225, fronting on Leonard avenue in the city of St. Louis, executed a deed of trust of that date by which he conveyed said lot to Leo Block in trust to secure the payment of a promissory note for $ 700 therein described. On the eighteenth of June, 1892, the said trustee in pursuance of the provisions of, and by virtue of the power in him vested by said deed of trust, offered said property at public sale, and Jeptha H. Simpson became the purchaser thereof for the sum of $ 1,175 and received the trustee's deed therefor of the same date. Afterward, in February, 1893, the said Simpson died, and the appellant, W. C. Richardson, became the administrator of his estate. On the twenty-second of April, 1893, the said administrator by an order duly entered of record, was by the probate court ordered to take charge and possession of the real estate of said deceased, and to rent the same for a period not exceeding two years, and to collect the rents thereof for the purpose of paying off the debts of said deceased, to the payment of which the court found the personal property inadequate. Afterward, on the eleventh day of August, 1893, the administrator instituted this suit in the St. Louis circuit court. The petition after first reciting the said order of the probate court, was in the common form of a petition in an action in ejectment. The defendant Champion was a tenant of the said DuBois. DuBois defended the suit and in his answer, after denying all the allegations of the petition, except that plaintiff was in charge of the estate of said Simpson as administrator, recited the title aforesaid of the said deceased, averred that plaintiff claimed under said title, and as a defense thereto charged "that said Simpson bid at said sale and accepted said conveyance as and for the benefit of defendant DuBois and as his trustee, under and in accordance with an agreement made prior to said sale between said Simpson and defendant DuBois, whereby the said Simpson agreed with the said DuBois to purchase the premises at said sale for said DuBois and to take a conveyance therefor from said trustee to himself and thereafter to hold said premises for the sole use and benefit, and as the trustee of said defendant DuBois; that thereupon the said DuBois paid the said Simpson the amount of said purchase money, which money was thereupon paid by the said Simpson to the said trustee, who thereupon executed said conveyance to said Simpson as aforesaid," and prayed the court to adjudge and decree that said DuBois is the owner of said property and entitled to the possession thereof and for such other orders and judgments as may be just and lawful. The plaintiff's reply to this answer was a general denial, a plea of the statute of frauds, and a further plea that if said real estate was in fact conveyed to the said Simpson to be held in trust for the said DuBois, that it was so conveyed for the purpose of hindering, delaying and defrauding the creditors of DuBois.
On the evidence the court in substance found that the property was bought in by Simpson and paid for with his own money, but that it was so bought and paid for on account of defendant, and that the amount so paid therefor was afterward refunded to Simpson in his lifetime by DuBois, and rendered judgment in favor of the defendant from which the plaintiff appeals.
The defense set up and tried in this case was an equitable one addressed to the conscience of the chancellor, consequently the evidence is subject to review by this court on appeal. As both parties claim under the title acquired by Simpson at the trustee's sale, it was not necessary to go back of that title. It...
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