State ex rel. St. L. Union Trust Co. v. Neaf, No. 36894.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDalton
Citation139 S.W.2d 958
Decision Date07 May 1940
Docket NumberNo. 36894.
PartiesSTATE OF MISSOURI at the relation of ST. LOUIS UNION TRUST COMPANY, a Corporation, as Curator of the Estate of LAUREL WAGNER, a Minor, as Curator of the Estate of H. SAM WAGNER, a Minor, as Curator of the Estate of CHARLES E. ROYSTON, a Minor, as Curator of the Estate of EDWARD L. HORNER, JR., a Minor, as Curator of the Estate of MARION C. FACH, a Minor, as Curator of the Estate of ALBERT S. FRAMPTON, JR., a Minor, as Executor of the Will of GEORGE M. VON SCHRADER, as Co-executor of the Will of CONRAD BUDKE, JR., as Administrator c.t.a. of the Estate of F.H. GOODRIDGE, as Executor of the Will of JULIA MAYER, as Executor of the Will of CORNELIA R. BRANDT, as Executor of the Will of THOMAS S. GERHART, as Co-executor of the Will of SAMUEL M. TIPTON, as Co-executor of the Will of ALEXANDER B. PIERCE, as Co-guardian of the Estate of VILMA RECKER, an incompetent person, as Guardian of the Estate of GEORGE D. DANA, an incompetent person, Relator, v. MARTIN L. NEAF, as Assessor of St. Louis County, and as a Member of the Board of Equalization of Said County, WALTER E. MILLER, as County Clerk and as a Member of the Board of Equalization of Said County, JOHN M. CRUTSINGER, CLIFFORD CORNELI, HENRY L. MUELLER and HENRY W.J. ROTT, as Members of the Board of Equalization of Said County, CLARENCE EVANS, JACK STAPLETON and JESSE A. MITCHELL, as Members of the State Tax Commission, and LLOYD C. STARK, FORREST SMITH, ROY MCKITTRICK, DWIGHT H. BROWN and ROBERT W. WINN, as Members of the State Board of Equalization.
139 S.W.2d 958
STATE OF MISSOURI at the relation of ST. LOUIS UNION TRUST COMPANY, a Corporation, as Curator of the Estate of LAUREL WAGNER, a Minor, as Curator of the Estate of H. SAM WAGNER, a Minor, as Curator of the Estate of CHARLES E. ROYSTON, a Minor, as Curator of the Estate of EDWARD L. HORNER, JR., a Minor, as Curator of the Estate of MARION C. FACH, a Minor, as Curator of the Estate of ALBERT S. FRAMPTON, JR., a Minor, as Executor of the Will of GEORGE M. VON SCHRADER, as Co-executor of the Will of CONRAD BUDKE, JR., as Administrator c.t.a. of the Estate of F.H. GOODRIDGE, as Executor of the Will of JULIA MAYER, as Executor of the Will of CORNELIA R. BRANDT, as Executor of the Will of THOMAS S. GERHART, as Co-executor of the Will of SAMUEL M. TIPTON, as Co-executor of the Will of ALEXANDER B. PIERCE, as Co-guardian of the Estate of VILMA RECKER, an incompetent person, as Guardian of the Estate of GEORGE D. DANA, an incompetent person, Relator,
v.
MARTIN L. NEAF, as Assessor of St. Louis County, and as a Member of the Board of Equalization of Said County, WALTER E. MILLER, as County Clerk and as a Member of the Board of Equalization of Said County, JOHN M. CRUTSINGER, CLIFFORD CORNELI, HENRY L. MUELLER and HENRY W.J. ROTT, as Members of the Board of Equalization of Said County, CLARENCE EVANS, JACK STAPLETON and JESSE A. MITCHELL, as Members of the State Tax Commission, and LLOYD C. STARK, FORREST SMITH, ROY MCKITTRICK, DWIGHT H. BROWN and ROBERT W. WINN, as Members of the State Board of Equalization.
No. 36894.
Supreme Court of Missouri.
Division One, May 7, 1940.*

[139 S.W.2d 959]

Certiorari.

[139 S.W.2d 960]

WRIT QUASHED.

Bryan, Williams, Cave & McPheeters for relator.

(1) The land trust certificates held by the St. Louis Union Trust Company in its several fiduciary capacities are the evidence of beneficial or equitable interest in real property, the legal title to which is held by said trust company in its capacity as trustee under the Declaration of Trust, and they are not choses in action or the evidence of loans made by the several estates owning them to the trust company. Restatement of the Law of Trusts, sec. 130; Allen v. Rees, 136 Iowa, 426; McCamey v. Hollister Oil Co., 241 S.W. 695; In re Croutt's Will, 249 N.Y. Supp. 794; Laughlin v. Leigh, 112 Ill. App. 136; Brown v. Fletcher, 235 U.S. 599; Senior v. Braden, 295 U.S. 433, 100 A.L.R. 794; Narragansett Mutual Fire Ins. Co. v. Burnham, 51 R.I. 375; Schiffman v. Schmidt, 154 Mo. 212; Walton v. Dumtra, 152 Mo. 502; Rollestone v. Natl. Bank of Commerce, 299 Mo. 72; Mercier v. West K.C. Land Co., 72 Mo. 490; Coon v. Stanley, 230 Mo. App. 527; In re Estate Maris, 151 Atl. 577, 70 A.L.R. 1334. (2) The statute definitely makes these land trust certificates interests in real property. Sec. 9977, Ch. 59, R.S. 1929; State ex rel. Koeln v. Cabanne Improvement Co., 278 Mo. 323. (3) Trust property is assessable and taxable against the trustee and not against the beneficiary. 2 Bogert on Trusts & Trustees, 263; 1 Perry on Trusts, 575; 2 Perry on Trusts, 892; 65 C.J. 716; Hildebrandt v. Wolff, 79 Mo. App. 334; Ollien v. Galt, 150 Mo. App. 541; Grand Lodge of Maryland, K.P. v. Baltimore, 157 Md. 542, 547; Ellsworth College v. Emmett County, 156 Iowa, 58, 42 L.R.A. (N.S.) 530; People v. Wells, 103 N.Y. Supp. 875; Hardin v. Grosvenor, 69 Ill. 142; 61 C.J. 143. (4) The fact that the trust company, in its individual capacity, reserved the right to own the certificates and has an option to purchase any certificate by tendering to the certificate holder the estimated value of the certificate ($100) and interest on the $100 at the rate of five per cent from the time of the last distribution of the income, does not make the certificates the evidence of loans and does not have the effect of converting the equitable interests in real property into personal property. Turner, v. Kerr, 44 Mo. 433; Slowey v. McMurray, 27 Mo. 116; Duell v. Leslie, 207 Mo. 674.

C.W. Detzen for respondents.

(1) The relief sought by the relator cannot be granted in this proceeding because: (a) There is no record before this court which can be reviewed in certiorari. State ex rel. v. Caulfield, 62 S.W. (2d) 818; State ex rel. v. Westhues, 286 S.W. 386; State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Moniteau, 45 Mo. App. 387; State ex rel. v. Reynolds, 190 Mo. 578, 89 S.W. 877; Ward v. Board, 135 Mo. 309, 36 S.W. 648; State ex rel. v. Madison, 136 Mo. 323, 37 S.W. 1126; State ex rel. v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635; Hannibal v. State Board, 64 Mo. 294. (b) If the relator has been illegally assessed, its remedy is one in equity to enjoin collection of the taxes. State ex rel. v. Telephone Co., 165 Mo. 502; State ex rel. v. Neaf, 130 S.W. (2d) 509; Bank v. Schlotzhauer, 298 S.W. 732, 317 Mo. 1298; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; Moss v. Allen, 8 S.W. (2d) 1038. (c) Even though the respondents erred in making and approving the assessments in question, they had jurisdiction of the subject matter and certiorari will not lie to control the exercise of their jurisdiction. State ex rel. v. Westhues, 286 S.W. 286; State ex rel. v. Johnson, 138 Mo. App. 306, 121 S.W. 780; State ex rel. v. Simmons, 112 Mo. App. 535; State ex rel. v. Broaddus, 245 Mo. 123. (2) The respondents correctly assessed the land trust certificates as personal property because the declaration of trust is in effect a mortgage and the land trust certificates are bonds, and not interests in real estate. Sec. 9977, R.S. 1929, as amended Laws 1937, p. 546; Restatement of the Law of Trusts, sec. 130; 61 C.J., p. 192, sec. 156.

DALTON, C.


This is an original proceeding by certiorari in this court at the relation of the St. Louis Union Trust Company, as fiduciary on behalf of certain estates being administered by it, to secure the annulment of the assessments of certain certificates (as personal property) against said estates, as made by the assessor of St. Louis County, in 1938. A writ of certiorari was duly issued directing the respondents, i.e., the assessor of St. Louis County, Missouri, the board of equalization of said county, the state tax commission of Missouri and the state board of equalization to certify and return to this court their records with reference to said assessments and the appeals, complaints and proceedings thereon; and particularly requiring the respondent Neaf, "as assessor, to certify and return ... a true copy of the tax returns made by petitioner for each of said ... estates ..., for state, county and school district taxes for the year 1939 filed with the assessor ... and a true copy of the assessments made ... against each of the several estates after the filing of the returns by the petitioner ..."

In response to our writ respondents filed their return thereto as follows: "Now come all of the respondents in this cause, and in obedience to the writ of certiorari issued by this Honorable Court, state: That a stipulation between the relator and the respondents has been filed in this cause acknowledging that Exhibits `A' and `B' attached to said stipulation and made a part thereof, and which are made a part of this return by reference, and are hereby certified to this Honorable Court, are true and correct copies of all of the record and proceedings pending before respondents in this cause, as fully and entirely as they remain among their records and files, and these respondents as a further return to the said writ of certiorari, refer to paragraph 9 of the aforesaid stipulation waiving, on the part of the relator, the necessity of filing further copies or records of the proceedings other than those attached to the stipulation as aforesaid."

The stipulation referred to recites that Exhibit "A" is a copy of the findings of fact and orders entered by the board of equalization of St. Louis County, Missouri, confirming the assessments made by the assessor; that Exhibit "B" is a copy of the order of the state board of equalization confirming and approving the action of the state tax commission; and that Exhibit "C" is a copy of the declaration of trust described in relator's petition and introduced in evidence at hearings before the Boards of Equalization and the State Tax Commission. Paragraph 9 referred to is as follows: "If a writ of certiorari issue in this cause the exhibits attached to this stipulation may be referred to by reference in the returns of the respondents as all of the record and proceedings before the several respondents without the necessity of their filing further copies or records thereof."

On the day the writ issued the parties filed in this court the stipulation, referred to in the return. It is styled, "Stipulated Record." This stipulation, in addition to identifying Exhibits "A", "B", and "C", recites that the only parts of the assessments against the estates complained of are the assessments of trust certificates or participation shares; that the tax returns so made were set aside by the assessor and assessments of the said certificates were made "as alleged by the relator;" that relator filed appeals in the matter of each of the assessments to the board of equalization of St. Louis County, Missouri; that the appeals were heard, and findings of fact were made and orders were entered confirming the assessments made by the assessor, "all as alleged in relator's petition;" that a joint complaint was filed by the relator with the state tax commission; that a hearing was had thereon, a finding of facts was made and entered of record by said commission in which it found the facts to be the same as those found by said

139 S.W.2d 961

county board of equalization; and that it entered of record its order approving and confirming the said assessments and the action of the said board of equalization, "all as alleged by relator in its petition." (Italics ours.)

Upon the filing of said return the relator...

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13 practice notes
  • State ex rel. Reorganized School Dist. R-2 of Newton County v. Robinson, R-2
    • United States
    • Court of Appeal of Missouri (US)
    • February 15, 1955
    ...return, may not be considered unless they are properly a part of the record [State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 962-963(8, 9)]. The chief purpose Page 237 of certiorari being to confine an inferior tribunal within its jurisdictional limits [State ex......
  • Hutchinson, In re, No. 8880
    • United States
    • Court of Appeal of Missouri (US)
    • May 21, 1970
    ...ex rel. Taylor v. Blair, 357 Mo. (banc) 586, 592, 210 S.W.2d 1, 3(3); State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 92, 139 S.W.2d 958, 962; State ex rel. McFarland v. Terte, 320 Mo. 465, 472, 8 S.W.2d 16, 19. Cognizant of the foregoing, we denied the mother's When finally de......
  • Guaranty Savs. & L. Assn. v. Springfield, No. 35933.
    • United States
    • Missouri Supreme Court
    • May 7, 1940
    ...position that a settlement with the mortgagor in possession before condition broken bars any claim by the mortgagee under constitutional 139 S.W.2d 958 provisions similar to ours, but as we said in the case of Morgan v. Willman, supra, the authorities are divided, and we are of the opinion ......
  • State ex rel. Stoffey v. La Driere, No. 1
    • United States
    • Court of Appeal of Missouri (US)
    • December 23, 1954
    ...such evidence or issues through misunderstanding or otherwise. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 92, 99, 139 S.W.2d 958, 961, 966; State ex rel. Police Retirement System of City of St. Louis v. Murphy, Judge, 359 Mo. 854, 224 S.W.2d 68; State ex rel. Missouri Bapt......
  • Request a trial to view additional results
13 cases
  • State ex rel. Reorganized School Dist. R-2 of Newton County v. Robinson, R-2
    • United States
    • Court of Appeal of Missouri (US)
    • February 15, 1955
    ...return, may not be considered unless they are properly a part of the record [State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 962-963(8, 9)]. The chief purpose Page 237 of certiorari being to confine an inferior tribunal within its jurisdictional limits [State ex......
  • Hutchinson, In re, No. 8880
    • United States
    • Court of Appeal of Missouri (US)
    • May 21, 1970
    ...ex rel. Taylor v. Blair, 357 Mo. (banc) 586, 592, 210 S.W.2d 1, 3(3); State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 92, 139 S.W.2d 958, 962; State ex rel. McFarland v. Terte, 320 Mo. 465, 472, 8 S.W.2d 16, 19. Cognizant of the foregoing, we denied the mother's When finally de......
  • Guaranty Savs. & L. Assn. v. Springfield, No. 35933.
    • United States
    • Missouri Supreme Court
    • May 7, 1940
    ...position that a settlement with the mortgagor in possession before condition broken bars any claim by the mortgagee under constitutional 139 S.W.2d 958 provisions similar to ours, but as we said in the case of Morgan v. Willman, supra, the authorities are divided, and we are of the opinion ......
  • State ex rel. Stoffey v. La Driere, No. 1
    • United States
    • Court of Appeal of Missouri (US)
    • December 23, 1954
    ...such evidence or issues through misunderstanding or otherwise. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 92, 99, 139 S.W.2d 958, 961, 966; State ex rel. Police Retirement System of City of St. Louis v. Murphy, Judge, 359 Mo. 854, 224 S.W.2d 68; State ex rel. Missouri Bapt......
  • Request a trial to view additional results

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