Roberts v. Moseley

• Citation: 51 Mo. 282
• Parties: JOSHUA ROBERTS, Respondent, v. HENRY MOSELEY and JOHN MOSELEY, Appellants.
• Decision Date: 31 January 1873
• Court: United States State Supreme Court of Missouri

51 Mo. 282

JOSHUA ROBERTS, Respondent,

v.HENRY MOSELEY and JOHN MOSELEY, Appellants.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Newton Circuit Court.

A. H. Dale, for Appellant.

1. Any act by which the person named as trustee, manifest an intent to acquire or exercise any influence in the management of the trust property, will tend to fix upon him the responsibilities of the trust. (Tiff. & Bull., Trusts and Trustees, 511; Hill on Trustees, 4th Am. Ed., 215; O'Neil vs Henderson, 15 Ark., 235; Montford vs. Cadogan, 17 Ves., 488 and same parties 19 Ves., 638.) And certainly five years possession is sufficient. Armstrong's son and administrator testified, that he found among his father's papers, either the trus deed or a copy of it, which is another fact which tends to prove his acceptance, and further, if a trustee does not wish to accept the trust, he must disclaim. The presumption is that he accepts. (Tiff. & Bull., Trusts and Trustees, 510; 512; 524; 526; 527; 529; 532; and 533; Washb., on Real Prop., 196; 5 Harris. Dig. 1736.) No disclaimer being proven, he will be deemed to be trustee and to have fully accepted the trust.

II. Under the deed of trust offered in evidence, as soon as the marriage relations between George W. Moseley and Ann M. Moseley came to an end, the estate of the trustee at once became executed either to the cestui que trust or heirs at law (2 Wash., Real Prop., 188; Liptrot vs. Holmes, 1 Ga., 381; Bush's Appeal, 33 Pa. St., 85; Steacy vs. Rice, 27 Penn. St., 75; Morgan vs. Moore, 3 Gray, 323.)

C. W. Thrasher, for Respondent.

The Circuit Court committed no error in excluding from the jury the trust deed from George W. Moseley to H. C. Armstrong.

In ejectment an equitable defense must be pleaded especially. Kennedy vs. Daniels, 20 Mo., 104.

The trust deed was not signed by H. C. Armstrong--nor was there any evidence offered that he ever interfered with the trust estate under the trust deed.

Armstrong was not obliged to become the trustee of Ann M. Moseley--and some assent by word or deed must be shown to make him such. (2 St. Eq. Juris., 4th Ed., § 106; 2 Washb. on Real Prop., 2nd Ed. 196, § 13.)

Even if H. C. Armstrong had accepted the trust, then under the terms of the trust deed, he held the legal title, and was entitled to possession of the trust estate, as against Ann M. Moseley and her heirs.

A trustee can only be divested of his right of possession of the trust estate, by his cestui que trust by a decree of a court of Equity (2 Washb. on Real Prop., 2nd Ed., 212, § 17.)

The legal title of a trust estate in a trustee passes to his heirs or grantees subject to the trust, if the purchaser has notice, (2 Wash. on Real Prop., 2nd Ed., 202, § 25.)

A trustee may maintain ejectment against his cestui que trust. (2 Washb. on Real Prop., 2nd Ed., 207, § 6.)

If H. C. Armstrong was trustee, and the title to the premises acquired by him from F. M. Crouch, inured to the benefit of appellants as heirs of Ann M. Moseley, cestui que trust, they could avail themselves of it only by a proper proceeding in Equity. It would not enable them to defeat the right of possession in the trustee or his grantees in ejectment. There is no merger of the legal and equitable estates in appellants, as heirs of Ann M. Moseley. Appellants are not entitled to the possession of the trust estate under the terms of trust deed.

In any view of the case, Respondent as the grantee of the widow and heirs of H. C. Armstrong, deceased, has the legal title and the right of possession of the premises, and is entitled to recover in this suit.

WAGNER, Judge, delivered the opinion of the court.

This action was an ejectment brought by the plaintiff against the defendants to recover certain real estate in Newton County.

From the record it appears that on the 26th day of July, 1853, one George W. Moseley, conveyed the premises in question, by deed, to H. C. Armstrong in trust, for the use and benefit of his wife, Ann M. Moseley, and her heirs forever. This deed was recorded on the same day it was executcd.

On the 18th day of March, 1854, Shapleigh and Day obtained a judgment by confession against George W. Moseley, upon which execution was issued, and levied upon the property, conveyed to Armstrong in trust for Mrs. Moseley and her children, and at a sale made by the sheriff of the same, the property was purchased by one John R. Chenault, and he received a sheriff's deed therefor. Chenault and wife conveyed the premises to M. F. Crouch, by deed dated October 27, 1855, and in October, 1859, Crouch and wife by their deed, conveyed the same to H. C. Armstrong, the trustee designated in the deed of trust. In 1868, the widow and children of Armstrong conveyed the land to plaintiff, and this constitutes his claim of title.

At the commencement of this suit, George W. Moseley, Ann M. Moseley and H. C. Armstrong, were all dead. The defendants are the heirs of Ann M. Moseley, and are in possession.

In their answer, in addition to a denial of title in the plaintiff, the defendants set out the terms of the deed of trust and asserted that the legal title had devolved on them. This part of the answer, on motion of plaintiff, was stricken out. The jury, under instructions of the Court, found a verdict for the plaintiff, upon which judgment was rendered, and the defendants have appealed. After part of the answer was stricken out, the court excluded from the consideration of the jury the deed from Moseley conveying the property in trust under which the defendants claim.

If this deed was valid, it passed the entire fee from Moseley, and as it was recorded prior to all the other conveyances under which the plaintiff seeks to derive title, it constitutes a title superior and paramount. It is now urged that as Armstrong never signed the deed, he was not a trustee, and the deed was for that reason inoperative.

The acceptance of the office of trustee may be proved by the declarations or other acts of the trustee. When the trust s created by deed, and the trustee intends to accept the appointment and execute the trust, the proper way to manifest that intention is to join in the execution of the deed. This s generally necessary where the instrument contains covennts to be made and executed by the trustee. But when the instrument contains nothing of the kind, joining in the deed is unnecessary, any act by which the trustee manifests an intent to acquire or exercise any influence in the management of the trust property, will tend to fix upon him the responsibilities of the trust. (Tiff. and Bul. on Trusts and Trustees, 510; Flint vs. Clinton Company, 12 N. H., 432; Leffler vs. Armstrong, 4 Iowa, 482; Christian vs. Yauncey, 2 Pat., and Heath, 240; O'Neil vs. Henderson, 15 Ark., 235.)

It has been held that, after a lapse of years, the acceptance of the trust by the trustee named in the instrument will be presumed, even...