State v. Ellison

• Decision Date: 16 May 1919
• Docket Number: No. 20974.,20974.
• Citation: 211 S.W. 880,278 Mo. 199
• Parties: STATE ex rel. CRUZEN v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

211 S.W. 880

278 Mo. 199

STATE ex rel. CRUZEN v. ELLISON et al., Judges.

No. 20974.

Supreme Court of Missouri, In Banc.

May 16, 1919.

Certiorari by the State, on the relation of Nathaniel G. Cruzen, against James Ellison and others, Judges of the Kansas City Court of Appeals, to quash the record of said court (202 S. W. 449) in a suit wherein William W. Robinson and wife were plaintiffs and relator was defendant. Decision of Court of Appeals quashed.

J. W. Peery, of Albany, for relator.

Dudley, Selby & Brandom, of Gallatin, for respondent Robinson.

BOND, C. J.

I. Certiorari to quash the record of the Kansas City Court of Appeals, because of conflict with certain decisions of this court. The opinion of the Kansas City Court of Appeals recites—

That plaintiffs, who are husband and wife, sued defendant for failure to perform an oral agreement made with them to buy in their lands under a first deed of trust and then (if 42 acres could not be sold for enough to pay off a second and third deed of trust) to lend plaintiffs enough money on the remaining 45 acres to pay off and discharge the remaining incumbrances. Defendant was the owner of the second deed of trust and advertised the land for sale thereunder. That the plaintiff husband discovered this, and immediately before the sale had a conversation with the defendant, who then again agreed to buy in said land at said sale for the plaintiffs and to hold the same for the plaintiffs' use and benefit, and repeated the agreement in reference to the disposition of the land as already set forth. That defendant at the sale was the only bidder and bought the land, by reason whereof he became a trustee for plaintiffs. "That said land was worth $8,000 and had a value in excess of the incumbrances of $4,000. That thereafter defendant sold and conveyed the land to another person, thus putting it out of his power to reconvey the land to plaintiffs, or for the plaintiffs to obtain title thereto. That by reason of all these facts the plaintiffs have been wrongfully deprived of the value of their land. That, notwithstanding the defendant's promise and agreement to buy said land and hold the same for the plaintiffs as trustee for the use and benefit of the plaintiffs, the lands, and all thereof, were so conveyed by the defendant to a stranger without the knowledge or consent of the plaintiffs with the purpose entertained by the defendant at the time and in such manner as to deprive the plaintiffs of the opportunity to recover the title to said land or any part thereof, or to recover said land in any way, and that the defendant received for such conveyance to a stranger a large sum of money, and has thereby converted to his own use all of the value of said land in excess of the first and second mortgages thereon, and has thereby had and received and taken and had and used the property of the plaintiffs to the value of $8,000 for his (the defendant's) own use and benefit and has failed and refused to account for the same to these plaintiffs." That the answer denied the oral agreement and averred a foreclosure by defendant of his deed of trust for nonpayment of the interest on the note secured. That there was a judgment below for $300 in favor of plaintiffs, which defendant, by writ of error, took to the Kansas City Court of Appeals.

II. In dealing with the contention that the action was one in equity and should not have been submitted to a jury, the Kansas City Court of Appeals said (202 S. W. 449):

"While the petition alleged that when the defendant bought the property there was a resulting trust in favor of the plaintiffs, yet it further alleged that the property was conveyed by defendant to a stranger, putting it beyond the power of plaintiffs to get back the land. The petition is not for money had and received by defendant from the stranger or the proceeds of the sale of the land by Cruzen to the stranger. These are not asked for. Nor does the petition ask that a resulting trust be declared in favor of plaintiffs in the property or its proceeds. While plaintiffs alleged a fiduciary and trust relation between themselves and the defendant, and on the trial proved the same, and submitted the cause to the jury upon the assumption that they were required to prove such relation, we think that plaintiffs assumed an unnecessary burden, and that it was not necessary to plead and prove any trust or fiduciary relation in this case. Taking the petition as a whole, it is apparent that it is a cause of action for damages for breach of contract, and as such is a suit at law. And this is true even if the damages asked were for the destruction of an equitable right. A man may have a legal remedy for the destruction of an...