Shelton v. Harrison
| Decision Date | 13 June 1914 |
| Citation | 167 S.W. 634,182 Mo.App. 404 |
| Parties | GEORGE A. SHELTON et al., Respondents, v. EDNA HARRISON et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court, Division No. Two.--Hon. D. E Blair, Judge.
AFFIRMED.
Judgment affirmed.
T. D Steele and Hugh Dabbs for appellant.
(1) It appears by the allegations in the petition that plaintiffs having no joint interest in the subject matter, that their alleged interests are separate and independent and that if there is any liability it is several and not joint liability. There is a separate and distinct interest of each one pleaded and for different amounts and the action is or should be one at law for conversion or assumpsit. Hence there is clearly a misjoinder of causes of action and of parties plaintiff. Neither party depends on the right of another in order to recover. R. S. 1909, Secs. 1731, 1732, and 1733; McNear v. Williamson, 166 Mo. 369-70; Bowman v. Branson, 111 Mo. 363; Cross v. Williams, 72 Mo. 580; Bliss on Code Plead., Secs. 61 and 63. (2) There can be no implied or resulting trust where there is an express contract or an express trust as the facts in this case disclose. Suits v. Taylor, 20 Mo.App. 173; 15 Enc. Law (2 Ed.), 1078; Thompson on Corporations, Sec. 441; 10 Cyc. 266, 385; Shelby v. Crow, 137 Mo.App. 466. (3) Under the Statutes of Missouri express trusts need not be created in writing, but must be proved by writing, signed by the party who created the same. R. S. 1909, Sec. 2868; Lowe v. Ewing, 31 Mo. 75; Murlock v. Murlock, 156 Mo. 431; Crawley v. Crafton, 193 Mo. 431. (4) When the parties intend to create an express trust no resulting trust will result from their conduct. Green v. Cates, 73 Mo. 115; Heil v. Heil, 184 Mo. 665. (5) An express trust cannot be established by parol evidence. Hillman v. Allen, 145 Mo. 638. (6) Verbal admissions of deceased persons as to resulting trusts should never be received except upon clear, strong, unequivocal and well-corroborated testimony. A mere preponderance is insufficient. Ringo v. Richardson, 53 Mo. 385. (7) In order to prove a resulting trust it must be established by testimony so clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such doubt. Mead v. Robertson, 131 Mo.App. 185; Curd v. Brown, 148 Mo. 82.
Mahew, Sater & Gardner for respondents.
(1) This is a suit in equity and while the judgment sued for is a money judgment, the process of reaching that judgment necessarily involves the finding and establishing of a trust. Hence, this case has its cognizance peculiarly in equity. Appellant misconceives the rule of pleading in equity cases. It is a fundamental principle in equity practice that all persons materially interested either legally or beneficially in the subject matter of the suit shall be made parties to it, either as plaintiffs or as defendants, so that there may be a complete decree which shall bind them all. Cook v. Basom, 164 Mo. 599; Pomeroy Remedies and Rights, Sec. 248; Phillips v. Hardenburg, 181 Mo. 475; Leyden v. Owen, 150 Mo.App. 114; Bobb v. Bobb, 76 Mo. 419; Ulrici et al. v. Pappin et al., 11 Mo. 48; Sections 1731, 1733, R. S. 1909. (2) A trust is an equitable right, title or interest in property, real or personal, distinct from the legal ownership thereof. Pratt v. Thornton, 28 Me. 355, 48 Am. Dec. 492; Gough v. Satterlee, 52 N.Y.S. 492, 32 A.D. 33; Dillenbeck v. Pinnell, 96 N.W. 860, 121 Iowa 201; Bispham's Principles of Equity, Sec. 20. (3) A trust is where the legal estate is in one and the equitable estate in the other. Goodwin v. McMinn, 44 A. 1094, 193 Pa. 646; Story's Eq. Jur. 964; Gifford v. Rising, 3 N.Y.S. 392; Nat'l Bank v. Ellicott, 1 P. 593, 31 Kan. 173; Corby v. Corby, 85 Mo. 388. (4) The trust arose in this case not by agreement, but by operation of law. But, if plaintiffs and A. H. Harrison had verbally agreed that Harrison should take and hold the title, for the benefit of those paying the purchase price, then this attempted parol trust would have been identical with the resulting trust which, in the absence of such parol agreement, the law will declare, and in such case, the attempted parol trust failing, the law will declare a resulting trust. Condit v. Maxwell, 142 Mo. 266, 275; Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396; Franklin v. Colley, 10 Kans. 260; Hall v. Congdon, 56 N.H. 279; Harold v. Land, 53 Pa. 268. (5) To constitute an express trust, there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created. McKee v. Allen, 204 Mo. 685; Young v. Young, 80 N.Y. 438; Beaver v. Beaver, 117 N.Y. 428-430; Currence v. Ward, 27 S.E. 329, 43 N.W. Va. 367; Newlock v. Newlock, 156 Mo. 438. (6) Where the consideration proceeds from two or more and the title is taken in one, a resulting trust arises in favor of the parties not named in the conveyance in proportion to the relative amount of the consideration paid by each. Baumgartner v. Geisfeld, 38 Mo. 41; Weiss v. Heitjamp, 127 Mo. 31; Clowser v. Noland, 133 Mo. 221; Davis v. Hoffman, 167 Mo. 582; Harrison v. Smith, 83 Mo. 216; Staller v. Coates, 88 Mo. 520; Bank v. Brightwell, 148 Mo. 365; Pundman v. Schoenick, 144 Mo. 155; Mayer et al. v. Bank, 86 Mo.App. 422.
The relief prayed for and granted in this case in the trial court is to declare and adjudge a resulting trust in favor of plaintiffs and against the defendant, Edna Harrison, widow of A. H. Harrison, in the excess proceeds of eighty acres of land in Barry county, Missouri, over and above the amount due on a deed of trust thereon, in default of which the land was sold and such excess proceeds paid to defendant Edna Harrison. The salient facts giving rise to this controversy are that, A. H. Harrison, a route agent of an express company, living at Monett, originated and promoted a scheme having for its object the purchase of this land for a fruit farm with money to be paid in monthly installments by him and his associates, the twelve plaintiffs and the other four defendants. These four defendants failed to make the payments and have disclaimed any interest in the fund in controversy. The execution of the plan contemplated the forming of a corporation after the land was paid for to own and hold the land, in which said Harrison and his associates, these plaintiffs, would be stockholders in proportion to the amounts paid by each. Each stockholder was to pay ten dollars per month for twelve months. There were originally other parties in the scheme but a number of these dropped out early. The management of the matter seems to have been left almost entirely to said Harrison, his associates being his friends and for the most part employees of the same express company and who had entire confidence in him. This confidence was in nowise abused by Harrison, as he kept a faithful account of all the money paid to him, applied same to the purpose for which it was paid in as fast as needed and made known in every way the fact that he was acting for his associates. Whenever payment was made to him, he issued a receipt in this form: "Received of the sum of ten dollars being the monthly payment on the purchase price of land in south one-half of southwest one-quarter of sections 36, 24, 28, to be incorporated and stock to be issued for the amount paid in, when twelve monthly payments of ten dollars each have been paid."
Soon after the first payments were made to him, Harrison purchased said tract of land for $ 1777.50, paying $ 200 cash, taking the title in his own name, and executing his notes to the vendor, payable monthly, for $ 100, each, secured by a deed of trust on said land. Thereafter, he continued to collect the monthly payments from his associates, paid the purchase money notes with interest as same became due each month, until eight notes with interest, in addition to the initial cash payment of $ 200, were paid, making $ 1000 and interest two dollars and eighty-five cents paid and invested in this land. Thereupon Harrison died. No one was left to manage or look after the business, monthly payments were no longer paid or collected, default was made in paying the remaining purchase money notes and in due time the deed of trust was foreclosed, the land sold thereunder for $ 1665, the unpaid notes and expenses of the sale paid out of such proceeds, leaving a balance of $ 752.42, which was paid over to and received by the defendant, Edna Harrison, wife of said A. H. Harrison, deceased.
At the time of his death, the said A. H. Harrison had collected from each of his associates, the twelve plaintiffs, nine monthly payments of ten dollars each, except that one plaintiff only paid eight of such payments, making a total collected by Harrison of $ 1070. He had paid out in addition to the $ 1002.85, paid on the purchase price of the land, other legitimate items for recording, abstract of title, postage etc., making the total expenditures $ 1044.95. All these facts are shown by the books and papers kept by said Harrison and he seems to have been careful to keep and leave a complete record of the whole transaction. There is no doubt whatever that the part of the purchase price of the land paid at and prior to Harrison's death was paid with money furnished by these plaintiffs. The defendant, Mrs. Harrison, knew these facts and testified to the same on the witness stand. In fact, after her husband's death, Mrs. Harrison furnished one of the plaintiffs a written statement showing the names of the parties who had furnished money to buy this land and the amounts contributed by each, making a total of $ 1140, but in...
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