Wasson v. English

• Decision Date: 31 January 1850
• Parties: WASSON ET AL. v. ENGLISH ET AL.
• Court: Missouri Supreme Court

13 Mo. 176

WASSON ET AL.

v.ENGLISH ET AL.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM PETTIS CIRCUIT COURT.

STUART & MILLER, for Appellants. 1. There was no express trust created in Ramsey & Wasson, by their purchase at the sheriff's sale, in April, 1847, and the agreement entered into immediately preceding that sale. 2. The court could not properly imply a trust in them, from any misconduct on their part in purchasing the property, at the sale on the 1st Monday in August, 1847, or prior to that sale. 3. Even if they were trustees by express agreement, or by implication, the decree of the court is erroneous. If they were trustees by express contract, we say that they did not speculate upon the trust fund whilst they were acting in the capacity of trustees. If trustees by implication, then the decree should have been rendered setting aside the sale.

ENGLISH, for Appellees.

1. The defendants are responsible as trustees; and herein of the statute of frauds, as applicable to the case. 1st. Because they admit the agreement in full in their answer, and do not set up the statute of frauds as a defense. To have availed themselves of the statute of frauds, they should have insisted upon it as a defense. 2 Story's Eq. §§ 755 to 757; Wildbahn v. Robidoux, 11 Mo. R. 659; 1 Cruise's Dig. 421; 1 Greenl. Ev. § 266; Hampton v. Spencer, 2 Vt. 287-8. 2nd. Even if the defendant had insisted upon the statute of frauds as a defense, they would be held responsible as trustees; because the defendants having been permitted to take the place they held in the agreement, upon their own suggestion and for their own accommodation in lieu of the attorney for the judgment creditor, and of the complainants, Montelius & Fuller, and upon their promise to perform the agreement made between English & Heard, and having bid off the land at the sheriff's sale, without being required to pay for it, and having thus got the title in their own name, immediately refused to execute a written declaration of the agreement, and proceeded to speculate upon the property for their own pecuniary benefit, will be regarded as trustees in equity on the ground of fraud. Roberts on Frauds, 102, 127 (no. 63), Newl. on Cont. 179; Story's Eq. §§ 330, 252, 256; 1 Cruise's Dig. 429; Rose v. Bates, 12 Mo. R. 30; Thyren v. Thyren, Verm. 296; Reech v. Kennigate, 1 Ambl. 67; Brown v. Lynch, 1 Paige's Ch. R. 147. 3rd. Because the defendants, having admitted the agreement in full in their answer, and alleged in substance, that they have carried the agreement into effect, in good faith, and having admitted that they were trustees in fact, by executing their note for the benefit of Montelius & Fuller, for the balance of the $810, left after satisfying the execution of Westerfield against English; equity will see that they have executed the agreement in good faith as trustees. Smith et al. v. Isaac, 12 Mo. R. 109. 2. Being responsible as trustees, they are not permitted to make any profit to themselves out of the trust property, but must account for all they received for the land. Story's Eq. §§ 321 to 323, 1211; 1 Mad. Ch. 91; Newl. on Con. 467; 2 Serg. on Vend. 124; 1 Cruise's Dig. 499; 4 Kent's Com. 438 (5th edition); Whichcate v. Lawrence, 3 Ves. jr. 740; Mealor v. Keemle, 2 Murph. 272.

BIRCH, J.

Westerfield having an execution against English, certain realestate belonging to the latter was about to be offered for sale, at the April term of the Pettis Circuit Court, 1847. Heard, who was the attorney for Westerfield, having also in his hands for collection certain other demands against English, in favor of Montelius & Fuller (also plaintiffs here), entered into an arrangement with English, whereby he, Heard, was to purchase in the property at the sheriff's sale, for a sum simply covering the amount due upon Westerfield's execution, and that English or his friends might either redeem it, or that it should be publicly re-sold on the first Monday in August following, upon such terms as would best promote the interest of all the parties concerned, and that the proceeds of such sale should be applied, firstly, to the liquidation of the debt and costs due to Westerfield; secondly, to the payment of such sum as English might admit to be due to Montelius & Fuller; and thirdly, the balance, if any, to be paid over to English.

Westerfield being regarded as in doubtful circumstances, and the defendants being his creditors, they proposed to take the place of Heard in respect to the purchase and subsequent disposition of the property, and it was assented to by English, “the understanding between all the parties being, that they would all use their exertions to get as good a price for the lands as possible, if it should become necessary to sell them in August.” Accordingly, at the sheriff's sale in April, the defendants bid off the land in a lump, at the sum of seven hundred and...