Sell v. West

• Decision Date: 22 December 1894
• Parties: Sell et al., Appellants, v. West et al
• Court: Missouri Supreme Court

28 S.W. 969

125 Mo. 621

Sell et al., Appellants, v. West et al

Supreme Court of Missouri, Second Division

December 22, 1894

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

Charles E. Pearce for appellants.

The controlling question in an inquiry as to whether there is a resulting trust is the ownership of the purchase money. If such ownership be established by parol, so as to leave no room for a reasonable doubt in the mind of the chancellor the resulting trust exists and follows the real ownership of the property. The respondent, West, is a fiduciary, the same as if he took directly from Billon. Bispham's Principles of Equity [4 Ed.], p. 119, et seq.; Hill on Trustees, p. 91 and cases; Kelly v. Johnson, 28 Mo. 249; Baumgartner v. Guessfeld, 38 Mo. 36; Pocock v. Nelson, 50 Mo. 256; Sharp v. Berry, 60 Mo. 575; Shaw v. Shaw, 86 Mo. 594. A resulting trust may be proved by parol, even against the face of the deed. Sharp v. Berry, 60 Mo. 575; Boyd v. McLeod, 6 Johns. Ch. 245; Fausly v. Jones, 7 Ind. 277; 1 Perry on Trusts, secs. 137, 138, and cases; Larkins v. Rhodes, 23 Ind. 157. And in opposition to defendant's answer denying the trust. Baker v. Vining, 30 Me. 126. The admission of defendant that the consideration was paid by Thomas H. West, or any act done constituting a ground for a resulting trust, are admissible. Baumgartner v. Guessfeld, 38 Mo. 36; Lloyd v. Carter, 17 Pa. St. 216; Shaw v. Shaw, 86 Mo. 594; Perry on Trusts, sec. 77, et seq. The statements of Thomas H. West antecedent to, and contemporaneous with, the deed to Ruffner and to the defendant, showing how they were to hold the property, are competent evidence. Kennedy v. Kennedy, 57 Mo. 73; Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Hill on Trustees, p. 94. The plea of laches is without merit. "Laches" is a question of fact on the evidence, an equitable defense determinable by the particular circumstances of the case. The plea stands upon principles identical with the doctrine of estoppel. The acts, representations or silence of the party must have been influenced, the other to do that which he otherwise would not have done, and, therefore, work a fraud or injury to him. He must also himself have been ignorant of the true facts. But if he has not been misled to his hurt, if no injury has arisen, or if the truth be known to the defendant, or if he had the means of knowledge, then the plea can not stand, because exact justice can be done by the decree, and the parties remitted to their true position, and where the decree can award to him all that he has ever been entitled to, and where the right to relief is clear, lapse of time short of the period fixed by the statutes of limitations will not bar a claim to equitable interference. Landrum v. Bank, 63 Mo. 48; Stevenson v. Saline Co., 65 Mo. 425; Pike v. Martindale, 91 Mo. 268; Schradski v. Albright, 93 Mo. 42; Bergen v. Bennett, Caine's Cases, 19; Bigelow on Estoppel, 438; Dickinson v. Cosgrove, 100 U.S. 518; Spurlock v. Sproule, 72 Mo. 504; Burter v. Lawson, 72 Mo. 227; Bigelow on Frauds, p. 447; Doughty v. Doughty, 3 Halstead Ch. 649; Kane v. Bloodgood, 7 Johns. Ch. 110. The bill prays that the decree shall award to defendant all that he was ever entitled to as an heir at law, with full credits for all disbursements, charges and expenses shown, or which can be shown, to have been made.

Fisse & Allen for respondents.

(1) The plaintiff's action proceeds altogether upon the theory that out of the circumstances stated in the petition there arose in favor of Thomas H. West, the ancestor of the plaintiff, a resulting trust, which continued until the time of his death, and which beneficial title descended, in part, to the plaintiff as one of the heirs of the original beneficiary. It is admitted that no enforcible express trust was ever created, and that there is nothing in the circumstances stated in the petition and shown in the evidence that will sustain a claim that any constructive trust ever arose or existed, using the term "constructive trust" in its proper technical sense. "It is absolutely indispensable that the payment should be actually made by the beneficiary, B., or that an absolute obligation to pay should be incurred by him as a part of the original transaction of purchase at or before the time of the conveyance. No subsequent and entirely independent conduct, intervention or payment on his part would raise any resulting trust." 2 Pomeroy's Equity Jurisprudence, secs. 1031, 1037. "Trusts arising by operation of law should not be declared upon any doubtful evidence or even upon a mere preponderance of evidence. There should be no room for reasonable doubt as to the facts relied upon. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Jackson v. Wood, 88 Mo. 76. It is submitted that, under the foregoing rules of equity and evidence, the evidence here is insufficient to raise a resulting trust. (2) There is no room for reasonable doubt that the purpose of the conveyances set out in the petition was to enable Thomas H. West to defeat the just claims of his creditors, by putting his property beyond the reach of process. Where, under any circumstances, a resulting trust might arise out of a conveyance, that trust will be defeated, if the conveyance appears to have been made in furtherance of any fraudulent purpose. Henderson v. Henderson's Ex'rs, 13 Mo. 151; Miller v. Davis, 50 Mo. 572; Higgins v. Higgins, 55 Mo. 346; 79 Mo. 538; George v. Williamson, 26 Mo. 190; 1 Perry on Trusts [3 Ed.], p. 181, sec. 165; Kinney v. Mining Co., 4 Saw. 382; Edwards v. Haverstick, 53 Ind. 347; Shaw v. Millsaps, 50 Miss. 380. There is no implied trust possible under the facts presented in this record. The record excludes the possibility of the existence of any implied trust, by showing distinctly the existence of an express trust. In equity, as in contracts, proof of an express agreement excludes the possibility of any implied undertaking. Green v. Cates, 73 Mo. 115; Rasdell v. Rasdell, 9 Wis. 379; Bartlett v. Bartlett, 14 Gray (Mass.), 277; Schafer v. Huntington, 53 Mich. 310; Remington v. Campbell, 60 Ill. 516. The relation of trustee and cestui que trust must result from the facts as they exist at the time of the transaction out of which the trust arises, and can not be created out of subsequent events that work a change in the original circumstances and conditions. Kelly v. Johnson, 28 Mo. 249; Hunt v. Friedman, 63 Cal. 510; Dyer's Appeal, 107 Pa. St. 446. (3) Plaintiff has been guilty of such laches as ought to preclude her from recovering in this case. Brown v. County, 95 U.S. 157; Godden v. Kimmell, 99 U.S. 201; Burgess v. Railroad, 99 Mo. 496; Burdett v. May, 100 Mo. 13.

OPINION

Sherwood, J.

The parties plaintiff and defendant to this proceeding are (with the exception of defendant Franklin P. Steer, lessee, and plaintiff Walter E. Sell, and defendant Lewis Ruffner, Jr.) the three children of Thos. H. West, to wit, Washington West, Martha E. Sell and Virginia L. Ruffner. Thos. H. West died some time in the summer or fall of the year 1878.

In the year 1862, Thomas H. West, then doing business in St. Louis, became hopelessly involved and bankrupt. He then owned certain property on the north side of Olive street, between Fifth and Sixth streets, and a tract of land out at Shaw's Garden, which properties were sold under foreclosure of a mortgage made by Thomas H. West to Frederick L. Billon and bought in by Billon, the mortgagee. Shortly after this sale, to wit, in July, 1862, Ruffner, the son-in-law of West, made an arrangement with Billon, whereby the latter agreed to convey to Ruffner the property thus bought, whenever the purchaser, Billon, should have repaid himself out of the rents and profits of the property -- the indebtedness of Thomas H. West to him. This arrangement was consummated in 1867 by deed to Ruffner. Subsequent to the agreement, and possibly subsequent to the consummation of that agreement, the same property was sold under certain judgments recovered against Thomas H. West, and Ruffner became the purchaser and received deeds therefor, the purchase money being furnished by Thomas H. West.

In 1873, Ruffner, becoming involved in financial difficulties, and in order to prevent these properties from being sold to pay his indebtedness, conveyed them to his brother-in-law, defendant Washington West, for an expressed consideration of $ 25,000, none of which was paid nor intended to be paid. Defendant Washington West, has had twenty-five feet of the fifty-two and one half feet of the Olive street property conveyed to Mead as trustee of Virginia L. Ruffner, and has had the Shaw place conveyed to Martha E. Sell. Said defendant yet holds the residue of the property on Olive street, and has acquired property and built a residence of considerable value on Estelle street, which acquired property, it is alleged (and this is probably for the most part true), was acquired with the rents derived from the other heretofore mentioned property.

This proceeding instituted in March, 1888, had for its object the obtaining of a decree declaring that defendant Washington West holds the title to the residue of the property on Olive street, and the property on Estelle street, as a trustee of a resulting trust in favor of the beneficial plaintiff Martha E. Sell, and of the other heirs of Thomas H. West. An accounting is also asked for concerning the rents and profits from the date of the death of Thomas H. West, and for partition and for other and further relief.

The answer of defendant West, among other things, stated, that all of the transactions set forth in plaintiff's petition, whereby the title to the property in question became transferred...