Strype v. Lewis

• Decision Date: 02 May 1944
• Docket Number: 38791
• Citation: 180 S.W.2d 688,352 Mo. 1004
• Parties: Susan B. Lewis Strype v. Charles Q. Lewis, Jr., Defendant and Appellant, and Lulu M. Lewis, Defendant and Respondent
• Court: Missouri Supreme Court

180 S.W.2d 688

352 Mo. 1004

Susan B. Lewis Strype v. Charles Q. Lewis, Jr., Defendant and Appellant, and Lulu M. Lewis, Defendant and Respondent

No. 38791

Supreme Court of Missouri

May 2, 1944

Rehearing Denied June 5, 1944.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Remanded (with directions).

W. B Brewster and J. B. Dudley for appellant; R. R. Brewster, Jr., of counsel.

(1) A constructive trust arises when a devisee obtains a devise by a verbal agreement to hold the property devised for the benefit of a third person, and then fails to keep said agreement. Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8; Janssen v. Christian, 57 S.W.2d 692; Soehngen v. Jantzen, 186 S.W. 1109; Meade v. Robinson, 131 Mo.App. 185, 110 S.W. 1095; Teuscher v. Gregg, 136 Okla. 129, 276 P. 753; Hooker v. Axford, 33 Mich. 453; In re O'Hara's Will, 95 N.Y. 403; Gilpatrick v. Glidden, 81 Me. 137, 16 A. 464; Smullens v. Horton, 73 Neb. 667, 106 N.W. 577; Ransdell v. Moore, 153 Ind. 393, 53 N.E. 767; Crinkley v. Rogers, 100 Neb. 647, 160 N.W. 974; Seaber v. Ranson, 224 N.Y. 233, 120 N.E. 639; Rudd v. Gates, 191 Ky. 456, 230 S.W. 906; 66 A.L.R., Note: p. 156; 26 R.C.L., secs. 87, 88, p. 1241; Sec. 55, Re-statement of the Law of Trusts, p. 160; Sec. 160, Re-statement of the Law of Restitution, p. 640. (2) The Statute of Frauds may not be used as a shield for fraud, and one acquiring legal title by a fraudulent verbal promise to hold property for a specific purpose will be deemed to hold title as trustee for the true beneficiary notwithstanding the Statute of Frauds. Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8; Janssen v. Christian, 57 S.W.2d 692; Soehngen v. Jantzen, 186 S.W. 1109; Meade v. Robinson, 131 Mo.App. 185, 110 S.W. 1095; Teuscher v. Gregg, 136 Okla. 129, 276 P. 753; Hooker v. Axford, 33 Mich. 453; In re O'Hara's Will, 95 N.Y. 403; Gilpatrick v. Glidden, 81 Me. 137, 16 A. 464; Smullens v. Horton, 73 Neb. 667, 106 N.W. 577; Ransdell v. Moore, 153 Ind. 393, 53 N.E. 767; Crinkley v. Rogers, 100 Neb. 647, 160 N.W. 974; Seaber v. Ranson, 224 N.Y. 233, 120 N.E. 639; Rudd v. Gates, 191 Ky. 456, 230 S.W. 906; 66 A.L.R., Note: p. 156; 26 R.C.L., secs. 87, 88, p. 1241; Sec. 55, Re-statement of the Law of Trusts, p. 160; Sec. 160, Re-statement of the Law of Restitution, p. 640.

S. Ralph Stone and Walter A. Raymond for respondent.

(1) The separate answer of appellant, Charles Q. Lewis, Jr., alleged an express trust not subject to proof by parol evidence and which was barred by limitations. This record affirmatively shows said appellant has no right of recovery on the theory of express trust. Norton v. Norton, 43 S.W.2d 1024; Young v. Kansas City Life Ins. Co., 43 S.W.2d 1046; Gates Hotel Co. v. C.R.H. Davis Real Estate Co., 331 Mo. 94, 52 S.W.2d 1011; Long v. Conrad, 42 S.W.2d 357; Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981; Woodard v. Cohron, 345 Mo. 976, 137 S.W.2d 497; Sec. 3494, R.S. 1939. (2) There is in this case neither pleading nor proof of a constructive trust. Gates Hotel Co. v. C.R.H. Davis Real Estate Co., 331 Mo. 94, 52 S.W.2d 1011; Purvis v. Hardin, 343 Mo. 652, 122 S.W.2d 936; Young v. Kansas City Life Ins. Co., 43 S.W.2d 1046; Norton v. Norton, 43 S.W.2d 1024; Long v. Conrad, 42 S.W.2d 357; Parker v. Blakeley, 336 Mo. 1189, 93 S.W.2d 981; Ferguson v. Robinson, 167 S.W. 447, 258 Mo. 113. (2) Any claim of appellant on the theory of a constructive trust is barred by limitations. Secs. 1002, 1014, R.S. 1939; Howard County v. Moniteau County, 336 Mo. 295, 78 S.W.2d 96; Kerber v. Rowe, 156 S.W.2d 925. (3) Appellant failed to adduce testimony establishing a constructive trust beyond a reasonable doubt and was not entitled to recover in any event. Fullerton v. Fullerton, 345 Mo. 216, 132 S.W.2d 966; Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981; Suhre v. Busch, 123 S.W.2d 8; Tichenor v. Bowman, 133 S.W.2d 324. (4) Appellant's own wrongful conduct precludes his recovery in equity. Ferguson v. Robinson, 167 S.W. 447, 258 Mo. 113; Jones v. Jefferson, 334 Mo. 606, 66 S.W.2d 555; Abernathy v. Hampe, 53 S.W.2d 1090.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

PER CURIAM

Suit in equity, and for a declaratory judgment, to establish a trust in a two-fifths interest in five parcels of real property and to subject the property to a judgment lien. Defendant-appellant by answer seeks a declaration of the same trust against his codefendant (respondent). Plaintiff, who is not a party to this appeal, is the former wife of defendant (appellant) Charles Q. Lewis, Jr. Plaintiff had procured a decree of divorce in the year 1926; in 1931 the decree had been modified to allow plaintiff a monthly sum for maintenance; appellant has failed to entirely meet the obligation of the decree as modified. Lulu M. Lewis, defendant (respondent), is the second (and estranged) wife of Charles Q. Lewis, Jr.

By the residuary clause of his will, Charles Q. Lewis, Sr., who died July 7, 1932, had bequeathed and devised two-fifths of the residue of his estate, which included the five parcels of land here in controversy, "to Lulu Lewis, the wife of Charles Q. Lewis, Jr."

The petition alleged that the will of Charles Q. Lewis, Sr., was made September 24, 1931, seven days after plaintiff had obtained the modification of her divorce decree; that Charles Q. Lewis, Sr., Charles Q. Lewis, Jr., defendant-appellant, and Lulu M. Lewis, defendant-respondent, conspired and agreed, with intent to defraud plaintiff as judgment creditor, that the two-fifths interest in the land was to be the property of defendant-appellant and that defendant-respondent was "merely to be the holder in trust of the title thereto" subject to the control of defendant-appellant. By separate answer, appellant admitted the judgment for maintenance; admitted the will "purports to devise" the two-fifths interest to respondent; denied the conspiracy to hinder the collection of plaintiff's judgment; but alleged, on the contrary, that at the time of the execution of the will "there was an oral agreement entered into by and between the said Charles Q. Lewis, Sr., and the defendant Lulu M. Lewis by the terms of which it was agreed that a two-fifths interest in the property . . . would by said Will be devised and bequeathed to Lulu M. Lewis to be held in trust by her only if and until the defendant Charles Q. Lewis, Jr., was physically and mentally able to assume charge and possession of said property or interest therein and it being further understood and agreed that the said defendant Lulu M. Lewis would . . . divest herself of any interest in or to said property and vest the same in the defendant Charles Q. Lewis, Jr., . . .; that the purpose for such an arrangement . . . was for the protection of the defendant Charles Q. Lewis, Jr., he having met, prior to the execution of said Will . . ., with an automobile accident resulting in a serious physical and mental condition and it not being known at the time of the execution of said Will by the said Charles Q. Lewis, Sr., whether the defendant Charles Q. Lewis, Jr., would be physically or mentally able to take charge and possession of said property or interests therein. . . ."

The separate answer of defendant-respondent in pleading to the separate answer of appellant contained a general denial, and pleas of the Statutes of Frauds and Uses of the State of Missouri, Statute of Limitations, laches, and that appellant is not entitled to any relief in a court of conscience.

At the conclusion of plaintiff's and respondent's evidence the trial court gave an "instruction in the nature of a demurrer to the evidence" to the plaintiff's case; thereupon the trial continued upon issues between appellant and respondent, at the conclusion of which the court gave an "instruction in the nature of a demurrer to the evidence" to appellant's case and discharged the respondent with her costs.

In an action for a declaratory judgment (Section 1126, R.S. 1939 et seq., Mo. R.S.A., sec. 1126 et seq.) an issue of fact may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding in pending. Section 1134, R.S. 1939, Mo. R.S.A., sec. 1134. "Relief by declaratory judgment is sui generis, and while not strictly legal or equitable, yet its historical affinity is equitable." Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W. 2d 945; Maxwell v. Andrew County, 347 Mo. 156, 146 S.W. 2d 621. And the issues raised by the pleadings in the case at bar are those cognizable in a court of equity. Respondent's and appellant's requests for instructions in the nature of demurrers to the evidence had no effect except to rest the case and submit the issues to the trial court for decisions on the merits. Fullerton v. Fullerton, 345 Mo. 216, 132 S.W. 2d 966. "Whether a declaratory judgment action is decided for or against the plaintiff, there should be a declaration in the judgment or decree defining the rights of the parties under the issues made." Declaratory Judgments, Judge Laurance M. Hyde, Vol. 26, W.L.Q., pp. 486-487, and see also p. 489; Smith v. Pettis County, 345 Mo. 839, 136 S.W. 2d 282; Frazier v. City of Chattanooga, 156 Tenn. 346, 1 S.W. 2d 786.

It is the contention of appellant that the evidence adduced was such as to compel a decree that the undivided two-fifths interest in the real property should be impressed with a constructive trust in favor of appellant; and that the Statute of Frauds (and Uses) may not be used as a shield for fraud -- one acquiring legal title by a verbal promise to hold property for a specific purpose will be deemed to hold title as trustee for the true beneficiary notwithstanding the Statute of Frauds. Respondent urges that facts sufficient to establish a...