Sampson v. Mitchell
| Citation | 28 S.W. 768,125 Mo. 217 |
| Parties | Sampson et al. v. Mitchell et al., Appellants |
| Decision Date | 04 December 1894 |
| Court | United States State Supreme Court of Missouri |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Reversed and remanded.
Turner Hinton & Turner for appellants.
(1) John H. Sampson, as the trustee of an express trust under the will of Richard Sampson, deceased, was the proper party to take such steps as might be necessary for the protection of the interests of his beneficiaries, when the trust property was threatened with a sale at a sacrifice under the tax judgment. R. S. 1889, sec. 1991; Anderson v. Mather, 44 N.Y. 249; Clarke v. Van Surlay, 15 Wend. 436; Cochran v. Van Surlay, 20 Wend. 375; Pitcher v Carter, 4 Sand. Ch. 1. (2) The Boone circuit court sitting as a court of chancery, was the proper tribunal to direct the trustee as to his duty in this emergency not provided for by the testator. Anderson v. Mather, 44 N.Y. 249; Clarke v. Van Surlay, 15 Wend. 436; Cochran v Van Surlay, 20 Wend. 375. (3) It was not necessary, in order to give the chancellor jurisdiction, that the trustee should have begun an action against his beneficiaries. The circuit court as inheriting the jurisdiction of the old high court of chancery, had peculiarly confided to its care and supervision the relation of trustee and cestui que trust, and the preservation of the estates of infants. The chancellor might, upon the ex parte application of the trustee, order such disposition of the trust property as he in a sound discretion might deem beneficial to the cestui que trust. Anderson v. Mather, 44 N.Y. 249; Clarke v. Van Surlay, 15 Wend, 436; Cochran v. Van Surlay, 20 Wend. 375; Pitcher v. Carter, 4 Sand. Ch. 1. (4) The trustee in his ex parte application to the court, completely represented the beneficiaries. Anderson v. Mather, 44 N.Y. 249; Clarke v. Van Surlay, 15 Wend. 436. (5) When the circuit court, sitting as a court of chancery at April term, 1885, passed upon the trustee's petition and made the order or decree authorizing him to raise a loan by mortgage or deed of trust upon the property for the purpose of paying off the accrued taxes and the incumbrance placed upon the property under the order of the April term, 1878, it was a court of general and competent jurisdiction, dealing with a subject over which it had peculiar and inherent powers; the trustee representing the beneficiaries, was, at the instance of those who were of age, before the court, and the court was competent to decide whether the trustee did sufficiently represent the beneficiaries; it decided that point in the affirmative and entered the order, and such order is valid and binding. Anderson v. Mather, 44 N.Y. 249; Clarke v. Van Surlay, 15 Wend. 436; Cochran v. Van Surlay, 20 Wend. 375; Freeman on Judgments [3 Ed.], sec. 124 et seq.; Black on Judgments; Castleman v. Relf, 50 Mo. 583. (6) The whole case as submitted to the court showed that the plaintiffs were seeking equity without offering to do equity. Thomas W. Sampson, Jessie B. Sampson and all of the children who were of age had requested the trustee to proceed as he did. The taxes accruing against the trust property for twenty years had been paid off with the money borrowed by the trustee under the orders of the court. The money paid by defendant Mitchell was used to pay off these loans and yet plaintiffs do not offer to repay this money or any part thereof, not even the surplus that remained after satisfying the debt. Bone v. Tyrrel, 113 Mo. 175. "When one has paid off a valid obligation which he was bound to meet, and has had the benefit of another's money advanced for that purpose, he shall not retain that benefit so as, in substance, to make another pay his debt." Wenlock v. River Dee Co., L. R. 19 Q. B. D. 155. (7) The pleadings, motions, brief of counsel, and the official stenographer's notes of the testimoney in the ejectment suit between plaintiffs in this action and defendant Mitchell, were all admissible in evidence to show what issues were involved in the ejectment suit, and therein passed upon by the court. Chouteau v. Gibson, 76 Mo. 38; Hickerson v. Mexico, 58 Mo. 61. (8) An equitable defense was interposed in the ejectment suit, was passed upon by the court, and determined adversely to the plaintiffs in this action; and a judgment in that suit is a bar to a further litigation of the same matters between the same parties and their privies. Chouteau v. Gibson, 76 Mo. 38; Preston v. Rickets, 91 Mo. 320; St. Louis v. Lumber Co., 98 Mo. 613; Sutton v. Dameron, 100 Mo. 141; Blanchard v. Brown, 3 Wall. 245. (9) In order to render a judgment in ejectment a bar to further litigation of the same matters, it is not necessary that an equitable defense should have been so interposed as substantially to convert the action into one in equity; not is it necessary that the equitable defense should have been set up as the basis of affirmative relief; it is sufficient if the equity was interposed merely defensively, and that there should have been an adjudication upon such equitable defense. Chouteau v. Gibson, 76 Mo. 38; Company v. Tipton, 113 Mo. 373.
S. C. Major and Draffen & Williams for respondents.
(1) The trustee, Sampson, clearly had no authority, of his own motion, to execute the deed of trust. No such power was conferred upon him by the will of Richard Sampson, deceased. Upon the contrary, it is expressly provided, that the land in no event should be subject to any debts or liabilities not charged upon it by the will of the testator. Price v. Courtney, 87 Mo. 387; Price v. Estill, 87 Mo. 379; Wood v. Kice, 103 Mo. 329; 1 Beach on Modern Equity Jurisprudence, sec. 248. (2) A trustee may apply to a court of equity for directions, making the persons interested parties to the proceeding, and those made parties will be bound by the decree entered in the cause. Mitford & Tyler's Equity Pleadings and Practice, 227; Hayden's Executors v. Marmaduke, 19 Mo. 403; Meddis v. Bull, 18 S.W. 6; Craig v. Wilcox, 22 S.W. 76; Covar v. Cantelou, 25 S.C. 35; Stansberry v. Inglehart, 19 Wash. Law Rep. 594; Hill on Trustees, 845; Freeman on Cotenancy and Partition, 563. (3) The ejectment suit instituted by the defendant Mitchell, against these plaintiffs, is not a bar to this action. "The repeated rulings of this court are, that a judgment in an ejectment suit is no bar to a second action between the same parties for the same property, and this is true whether the titles and defenses are the same or not." Kimmel v. Benna, 70 Mo. 52; St. Louis v. Lumber Co., 98 Mo. 613. (4) The circuit court properly refused to require the plaintiffs to refund to the defendants the money borrowed by the trustee. Price v. Courtney, 87 Mo. 387. Besides the pleadings did not make any such claim. Sims v. Gray, 66 Mo. 613; Pitcher v. Carter, 4 Sand. Ch. 1; Beach on Equity Practice and Pleading, sec. 428. The trustee could not be credited with penalties, interest and costs incurred through his negligence, and the same should not be charged as an equitable lien on the land. Booker v. Armstrong, 93 Mo. 49; Price v. Courtney, 87 Mo. 387.
Black, C. J., and Brace, J., dissent.
OPINIONIn Banc
Richard Sampson, of Boone county, died testate in 1863. By his will he devised to his son John H. Sampson the two hundred and forty acres of land now in question and certain personal property in trust for the following purposes: For the sole use "of my daughter-in-law Jessie B. Sampson and the children of her body begotten by son Thomas during her cohabitation with him * * * free from the debts, liabilities and control of her said husband as though she were a femme sole." It is provided further that Jessie B. Sampson "shall have the privilege of renting or leasing the whole or any portion of said estate, for such terms and upon such conditions, as to her shall seem best, or of continuing the occupancy of the same upon the sole condition that she shall properly support, maintain and educate the children of herself and my son Thomas during that time." Power is given to her to sell the products of the farm and live stock that may be in the hands of herself, or said trustee, or upon said farm; and it is made the duty of said trustee, upon her written request, to execute any needful bill of sale. The will provides further that the real estate, slaves and personal property, not disposed of under the trust, shall be kept together and appropriated to the use of the family during the lifetime of Jessie B. and her husband. Should Jessie B. die leaving her husband Thomas surviving it is made the duty of the trustee to pay to him during his lifetime the rents and profits of the land, or to permit him to occupy the premises for the maintenance and support of himself and children without rendering any account. The will provides further that upon the death of Jessie B. and her husband, Thomas, the title to the land shall at once vest in the children of said Thomas and Jessie.
Jessie B. Sampson and her husband, Thomas, and their seven children commenced this suit in November, 1891, making Porter J Mitchell and the trustee, John H. Sampson, defendants. The petition sets out the will of Richard Sampson and avers that John H. Sampson accepted the trust; that plaintiffs are entitled to the use of the trust estate; that on the third of March, 1886, John H. Sampson conveyed the land to one Waugh in trust to secure $ 1,575, that...
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