The Connecticut Mutual Life Insurance Company v. Smith

• Citation: 22 S.W. 623,117 Mo. 261
• Parties: The Connecticut Mutual Life Insurance Company, Appellant, v. Smith, Appellant
• Decision Date: 27 June 1893
• Court: United States State Supreme Court of Missouri

22 S.W. 623

117 Mo. 261

The Connecticut Mutual Life Insurance Company, Appellant, v. Smith, Appellant

Supreme Court of Missouri, Second Division

June 27, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

By this equitable proceeding, instituted March 4, 1886, the plaintiff sought relief in equity as follows: To establish as against the defendant a trust in an undivided one-fifteenth of a tract of land in the city of St. Louis, known as United States survey number 2500; the cancellation of certain deeds obtained as alleged by defendant of one Darby through fraud and a gross breach of trust, while acting as the trusted agent of Mrs. Washington, from whom plaintiff claims through mesne conveyances to Fisher & Wade and from the latter to plaintiff; to declare defendant a trustee as to such deeds and certain lands and money acquired by him by means of said deeds, compromises and exchanges effected by him by reason thereof; that defendant be divested of all title in the lands thus acquired, and the same be vested in the plaintiff; that an accounting be had as to all lands and moneys thus received by defendant, and the petition concludes with a prayer for other and further relief.

To the allegations of the petition were interposed the denials of the answer, and other allegations to the effect that plaintiff had no capacity to acquire any interest in the properties described in the petition; that such supposed acquisition was ultra vires the charter powers of plaintiff and that defendant acquired the title of Darby for full value and without notice of any fraud or breach of trust on the part of Darby. In conclusion the answer sets up the five and the ten years' bars of the statute.

A general reply was filed.

The evidence in this cause though very voluminous is not conflicting. It was for the most part offered by plaintiff and was chiefly documentary. That offered by defendant was largely devoted to showing that plaintiff's acquisition of title from Wade was ultra vires.

Defendant did not testify, nor call any witnesses in his behalf. His testimony in other causes was, however, used against him by plaintiff. At the close of the evidence the court entered an interlocutory decree in plaintiff's favor, which was in substance the following: The court found that defendant, when he took Darby's deed of October 25, 1880, held a relation of trust and confidence to Mrs. Washington as to her interest in United States survey 2500, and the actions of ejectment then being prosecuted for her by Morrison, and defendant as an associate and assistant of him, as set out in the petition, and that, by reason of his so holding same whatever title in the particular eleven parcels firstly described in the petition, was acquired by him, by virtue of said deed, was taken by him in trust for her, and thereafter was held by him as a trustee for her and the respective successive assignees of her rights in same, namely, Fisher Wade and plaintiff, under the several deeds of 1881 and 1883 mentioned, and on the repayment to him by plaintiff of the $ 100 he had paid Darby, with interest, all the title so acquired by him ought to be divested out of him, and vested in plaintiff; that plaintiff by virtue of the deeds mentioned in the petition made to Mrs. Washington, by divers of the defendants in said actions of ejectment pursuant to compromises, of the eight parcels first particularly described therein, and of the deeds therein mentioned made to Fisher, pursuant to compromise of others of said actions, of the three other parcels described therein, and by virtue of the deeds of February 5, 1881, April 11, 1881, and July 28 1883, and of the interlocutory and final decrees in the suit in partition begun on April 14, 1881, by Mary Jewett v. Hammond et al., cause number 56054, mentioned in the petition, acquired the title to an undivided one-fifteenth of said eleven parcels, and the whole of the two parcels of lot 49 of Peter Lindell's second addition set apart by the commissioners in partition in said cause 56054 as in controversy between the defendant and Robert B. Wade; and all the rights in law or equity of Mrs. Washington, Fisher and Wade therein; that the claim of title of defendant to a one-fifteenth of said eleven parcels, and to the whole of said two parcels of said lot 49, so set apart as in controversy under said deeds to and by Darby, was a cloud upon plaintiff's title to said two parcels of lot 49, and said undivided one-fifteenth of said eleven parcels, and that plaintiff was entitled to relief as prayed in its petition in respect of its title to said one-fifteenth of said eleven parcels, and the whole of said two parcels so set apart; and accordingly then decreed that defendant at the time of the commencement of said suit of Jewett v. Hammond et al., on April 14, 1881, and the making of the interlocutory decree therein, on October 20, 1881, held whatever title was acquired by him by virtue of said deeds of June 20, 1873, of Mary A. Washington to John F. Darby, and of October 25, 1880, of Darby to him, defendant, in or to said undivided one-fifteenth of said eleven parcels of said survey (describing them as in the petition) in trust for Robert B. Wade, and that since July 28, 1883, had held whatever title he by virtue of said two deeds of June 20, 1873, and October 25, 1880, acquired in said undivided one-fifteenth, or that he now has by virtue thereof, or of the interlocutory and final decrees in said cause in partition, of Mary Jewett v. Hammond and others, in said two parcels of said lot number 49, by said commissioners set apart to him or said Wade, in trust for plaintiff; and that in case plaintiff by April 13, 1891, paid into the hands of the clerk for defendant's use $ 100, with interest from October 25, 1880, in all $ 164, he, defendant, should, by April 20, 1891, deliver to the clerk for plaintiff's use his deed releasing to plaintiff all the title and interest that he acquired by virtue of said two deeds in said eleven parcels, or that he then held by virtue of them or said decrees in said cause 56054 in said two parcels of lot number 49 so set apart by said commissioners, and that, in case of his failure so to deliver such deed by said last-named day, then all the title acquired, or held by him, should be divested out of him, and vested in plaintiff, and he should be forever enjoined from setting up or claiming any title in said one-fifteenth in said eleven parcels, or any part of said two parcels so set apart under said two deeds of 1873 and 1880, and that the further disposition of the cause should be adjourned till April 30, 1891.

And on April 30, 1891, a final decree was entered, in which, it being shown to the court that plaintiff had before April 13, 1891, paid $ 164 into the clerk's hands for defendant's use, and that defendant had not delivered to him any deed for plaintiff, it was then decreed that all the judgments and directions of the decree of April 7, 1891, should be confirmed, and made firm and effectual forever, and that all the title that defendant by virtue of the two deeds of June 20, 1873, and October 25, 1880, acquired in said one-fifteenth of said eleven parcels, or then by virtue of said deeds, or the decrees made in said cause 56054, held in said two parcels of lot 49 set apart to him or Robert B. Wade as in controversy, etc., should be divested out of him, and be vested in plaintiff, and that he be forever enjoined from setting up such title, etc., and that plaintiff recover of him its costs of suit, etc. At the time of entering the decree, leave was given plaintiff to amend its petition to conform to the facts proven. Defendant excepted to this permission to amend, and three days thereafter moved for leave to amend his answer, which was denied.

From this decree, after necessary motions, both parties appealed: the plaintiff, because a trust was not declared as to other tracts of land, etc., described in the petition; the defendant, because any trust whatever in the land was declared in plaintiff's favor.

Compressing the vast mass of testimony into something like a readable compass, the evidence, so far as necessary to quote it, is, in substance, as follows: Mrs. Mary A. Washington, daughter and only surviving child of Samuel Hammond, was entitled to one-fifth of United States survey 2500. She resided in Georgia. Other heirs, descendants of Hammond, were entitled to the other four-fifths of that survey; some of them resided in Georgia, South Carolina, Alabama and Arkansas. In June, 1873, the whole of such survey, then worth $ 2,500 per acre, was in the actual adverse possession of the heirs of Peter Lindell or their grantors, and a large portion of it had been subdivided by them into lots and streets, called Peter Lindell's second addition to the city of St. Louis, and had been partitioned among such heirs, etc., in severalty. In May, 1873, John F. Darby, an attorney at St. Louis, wrote Mrs. Washington at Macon, Georgia, proposing to bring suit, as her attorney, to recover her interest in survey 2500, on the terms of having half of what he could recover, and nothing if he failed. In reply, she, on June 1, 1873, wrote accepting his offer, her letter reaching him on June 4.

Afterwards on June 14, he again wrote her two letters dated June 13 and 14, 1873, and sent her enclosed with them duplicate drafts of a contract for his employment on the terms previously agreed to, and also a draft of a quitclaim deed conveying to him for $ 100 and "other good and valuable considerations," recited to have been paid, an undivided half of said survey 2500, and other lands, which, as well as one copy of the contract, he requested her to execute and return to him. Respecting the deed, its effect and what ...