Wells v. Perry

• Decision Date: 31 May 1876
• Citation: 62 Mo. 573
• Parties: JOHN B. WELLS, Appellant, v. CHARLES A. PERRY, Respondent.
• Court: Missouri Supreme Court

62 Mo. 573

JOHN B. WELLS, Appellant,

v.CHARLES A. PERRY, Respondent.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.

B. Loan and B. R. Vineyard, with James J. Hitt, for Appellant.

This was a continuing trust, and no lapse of time will bar the action. (27 Mo., 591; 39 Mo., 292; Johns. Ch. R., 190, 384, and cases cited.)

Allen H. Vories, for Respondent.

I. The statute of limitations bars the action. (Johnson vs. Smith, 27 Mo., 591; Keeton vs. Keeton, 20 Mo., 530; Benton vs. Lindell, 10 Mo., 557; Smith vs. Ricords, 52 Mo., 581; Ricords vs. Watkins, 56 Mo., 553.)

II. The long time and acquiescence of plaintiff and his failure to assert his rights, if any he had; his conduct, and acts and silence for eleven years, are strong presumptions against him, and a court of equity will not relieve him. (Taylor v. Blair, 14 Mo., 437; Moreman vs. Talbott, 55 Mo. 397.)SHERWOOD, Judge, delivered the opinion of the court.

Wells, the plaintiff, instituted this suit January 3, 1871, against Perry, the trustee in a deed of assignment made May 9, 1859.

The other defendants (with the exception of Paxton, the administrator of Merritt L. Young, deceased) were beneficiaries under the deed, who refused to join with the plaintiff in the prosecution of his suit, the object of which was to enforce the performance of duties, which, the petition alleges, were offered and accepted by the trustee by his signing and acknowledging the deed, taking charge of the property conveyed, and selling the same.

This deed, though mentioned in the petition as filed therewith, and stated in the bill of exceptions to have been read in evidence, has been omitted from the record. The same may be said of the deposition of C. P. Armstrong. It appears, however, from the petition, that, by the terms of the deed referred to, it was made the duty of the trustee, to whom Merritt L. Young had transferred a stock of goods at Atchison, Kansas, worth some $30,000, to sell the same at Salt Lake City, and out of the proceeds of the sale thus made to pay all advancements, the costs and charges of transporting the goods to the point last named, then to pay the plaintiff the amount due on two promissory notes for $1,000 each, dated April 20, 1859, and due one day thereafter, executed to plaintiff by Young, afterwards to pay certain other debts, and, if there were any residue, to pay the same to the grantor in the deed, etc. It is also alleged, that Perry took the property to its point of destination and realized from its sale about $30,000, an amount sufficient to pay all advancements, charges, etc., and the debt of plaintiff; that Young died in 1864 insolvent; that Perry, though often requested, failed and refused to pay plaintiff's claim. An accounting is asked, judgment for the amount due on the notes, and for general relief.

The answer of Perry pleaded the statutory bar of ten years; denied that he ever accepted the trust, took possession of or sold the goods, and charged that the deed mentioned in the petition was a “sham affair,” gotten up at the instigation of Wells himself for the purpose of hindering, delaying and defrauding certain creditors of Young, who resided in Platte county, and were suing out attachments and having them levied on these goods; that Young, with plaintiff's knowledge and consent, retained possession of the goods, took them to Salt Lake at his own expense, and sold them on his own individual account; and the answer further alleged that plaintiff sent one J. B. Evans to Salt Lake to collect his debt, and that Evans did so. A reply was filed.

The evidence in this cause abounds in contradictions; portions of the testimony give some support to the allegations of the petition, while other portions uphold the statements of the answer. But we are of opinion, after a very careful...