Rogers v. Ramey

• Decision Date: 16 February 1897
• Citation: 39 S.W. 66,137 Mo. 598
• Parties: Rogers, Plaintiff in Error, v. Ramey
• Court: Missouri Supreme Court

39 S.W. 66

137 Mo. 598

Rogers, Plaintiff in Error, v. Ramey

Supreme Court of Missouri, Second Division

February 16, 1897

Error to Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Sterling P. Reynolds for plaintiff in error.

(1) The point upon which the court sustained the demurrer to the petition was that plaintiffs could not dispute the recitals in the deed of their ancestor. If that rule of law is correct, still the demurrer should have been overruled because this is a suit in equity for an accounting of partnership property, in which all property, real or personal, between the parties to the partnership and third parties, is treated as personalty. Thompson v Holden, 117 Mo. 118; Young v. Thrasher, 115 Mo 222. And it can make no difference in whose name the same is held, whether in the name of one or all. If the property is in the name of one partner he is a trustee, and holds the legal title in trust for the benefit of the partnership. Story on Partnership, sec. 92. (2) Interest of one partner in partnership property may always be shown by parol. Holmes v. McCray, 51 Ind. 358; Chester v. Dickerson, 54 N.Y. 1; Richards v. Grinnell, 63 Iowa 44; Leading Cases American Law of Real Property, vol. 4, 532; Bender v. Zimmerman, 122 Mo. 200, and cases cited. (3) There is a number of cases in this state where a deed absolute on its face has been held to be a mortgage; why can not such a deed be shown to be in fact a trust with the grantee as trustee? (4) The consideration clause in a deed is always open to explanation or contradiction and the true consideration may be shown. This court in the case of Fontaine v Boatmen's Savings Institution, 57 Mo. 561, uses this language: "The consideration clause in a deed has only the force and character of a receipt, and is always open to explanation and contradiction." Same ruling in Liebke v. Knapp, 79 Mo. 26, and in Baird v. Baird et al., 40 N.W. (N. Y.) 222, and cases cited. (5) It does seem that a court of equity ought not to permit one partner, after the death of the other, to take advantage of technicalities and thereby prevent an accounting of the affairs of the partnership, and thus enable the one in whose hands the most of the property is, to appropriate it to his own use in such manner as this record discloses. Every partner is the agent of his copartner, and the same rules and tests are applied to the conduct of partners toward each other as are applied to trustees and agents. Neither will be permitted to gain out of the partnership at the expense of the other. Pomeroy v. Benton, 57 Mo. 531.

Brown & Pratt and James W. Boyd for defendant in error.

(1) Before plaintiffs can have any right of action against the defendant on account of real estate conveyed to him by James A. Matney, deceased, by deed containing covenants of warranty, the plaintiffs must allege such facts as would, if true, either invalidate or annul the deed or create a trust in said lands in their favor. Our statute provides that "all declarations or creations of trust or confidence or of any lands, tenements, or hereditaments shall be manifested and proved by some writing signed by the party * * * or else shall be void." Sec. 5184. Unless plaintiffs are permitted to show by oral testimony that the grantee in the deed is simply a trustee, the petition fails to state a cause of action. Their position is in direct conflict with the statute. Under the allegations in the petition this deed to defendant can not be invalidated, nor can a trust be engrafted thereon by oral testimony. R. S., sec. 5184; Woodford et al. v. Stephens et al., 51 Mo. 443; Price v. Kane, 112 Mo. 412; Weiss et al. v. Heitkamp et al., 127 Mo. 20-23. Verbal declarations of trust of lands, no matter how positive or emphatic they may be, can not be enforced. They are absolutely void. (2) A grantee who has conveyed land with covenant of warranty is estopped from asserting that he had an interest in the purchase money or consideration therefor from which a trust might arise. 2 Devlin on Deeds, sec. 1184, last paragraph; Squire v. Harder, 1 Paige, 494; 19 Am. Dec. 446. In the last case referred to, complainants gave an absolute conveyance of the inheritance with warranty. They were held to be estopped from claiming any legal or equitable interest in the land by resulting trust. (3) When a deed contains covenants of warranty, no use can arise to the grantor. Such covenants estop him from claiming any legal or beneficial interest in the estate. 1 Perry on Trusts [3 Ed.], sec. 162, last paragraph; Philbrook v. Delano, 29 Me. 410; 127 Mo. 30, supra. (4) No trust results to a grantor even though he conveys his estate without consideration. Burt v. Wilson, 28 Cal. 632; Weiss case, 127 Mo. 23, supra; Jackson v. Railroad, 54 Mo.App. 636, 643. The deed in such instances raises a conclusive presumption of an intention that the grantee is to take the beneficial estate, and destroy the possibility of a trust resulting to the grantor, and no extrinsic evidence would be admissible to contradict this presumption, except in case of fraud or mistake. 127 Mo. 30. Plaintiffs in their brief contend that the doctrine by which a deed absolute on its face has been held to be a mortgage, should apply to this deed; but this court in the Weiss case decides that the mortgage cases are not in point, and that the doctrine therein contended for has no application to the creation of trusts by verbal agreements. 127 Mo. 29, and Philbrook case, supra. There is not a single indication of "partnership property" springing out of the fact alleged in the petition. The allegations in the petition show simply a joint ownership of said lands. In the 117 Mo. 128, it is held by this court that unless a contract under which a party claims a partnership interest in lands in controversy fairly excludes every construction under which the property can retain its usual characteristics of real estate, it should be held not to have created a partnership in the land. But even if it should be determined that the allegations in the petition are sufficient to create a partnership agreement and partnership ownership of said real estate, then the deed containing covenants of warranty conveying real estate from one partner to another, can not be attacked by oral testimony. Burt v. Wilson, 28 Cal. 632.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a proceeding in equity by plaintiff Martha B. Matney as administratrix, and her co-plaintiffs as the legal heirs of James A. Matney, deceased, to have the legal title to one undivided half of certain lots of ground described in the petition alleged to be in defendant declared to be in plaintiffs, and for an accounting between the parties with respect to the proceeds arising from the sale of other lots also described in the petition, and expenses necessarily attending the same, etc. The petition, leaving off the formal parts, is as follows:

"Plaintiffs further state that a short time prior to the twentieth day of October, 1887, the said James A. Matney, deceased, and defendant herein, purchased the following described real estate, situate in Buchanan county, Missouri, to wit: All of lots eight (8) and nine (9), twelve (12), thirteen (13) fourteen (14), fifteen (15), and sixteen (16) in block one (1), and lots fifteen (15), and sixteen (16) in block two (2), in Fair Ground addition to the city of St. Joseph, in Buchanan county, Missouri; lots four (4), five (5), and (6) in block twenty-seven (27), in St. Joseph Extension addition, an addition to the city of St. Joseph, in Buchanan county, Missouri; also one piece of ground described as follows: Beginning at a rock eleven hundred and ninety-five feet and three inches north, and fifteen feet east of the southwest corner of the southeast quarter of the southeast quarter of section five (5), township fifty-seven (57), of range thirty-five (35), thence north to the southwest corner of block four (4) of North St. Joseph addition to the said city of St. Joseph, thence east along the south boundary of said block to the west line of the alley on west boundary of the Fair Ground addition to said city, thence south on the west line of said alley to a point on a line with the south line of lot twelve (12) in block two (2) in said Fair Ground addition, thence west to Tenth street to the place of beginning.

"Plaintiffs further state that said real estate was purchased by said James A. Matney, deceased, and defendant herein, with the joint means of the said Matney, and defendant, and the legal title to said real estate was by agreement conveyed to said Matney, to be by said Matney held in trust for the joint benefit of said Matney and defendant, the proceeds of the sale of said real estate, or any part thereof, to be shared equally between said Matney and defendant, after first paying the expenses that might legally come against said real estate.

"Plaintiffs further state that the legal title to said real estate was held by said James A. Matney, deceased, from the time of its purchase aforesaid in trust for the benefit of said Matney and defendant until the third day of January, 1889, and during the time the same was held by said James A. Matney, he, the said Matney, sold and conveyed lots twelve (12), thirteen (13), fourteen (14), fifteen (15), and sixteen (16) in block one (1), and lots fifteen (15) and sixteen (16) in block two (2) in Fair Ground addition, an addition to the city of St. Joseph, for which the said Matney received the proceeds of the sale of said real estate and applied and used the said money in connection with and for the use of said partnership in pursuance of the contract heretofore set out.

"Plaintiffs further state that about the third of January,...