Wiles v. Robinson & the Union Bank of Trenton

• Decision Date: 31 October 1883
• Parties: WILES, Petitioner, v. ROBINSON AND THE UNION BANK OF TRENTON, Appellants; WILLIAMS AND WIFE, Respondents; other Defendants not Contesting.
• Court: Missouri Supreme Court

80 Mo. 47

WILES, Petitioner,

v.ROBINSON AND THE UNION BANK OF TRENTON, Appellants; WILLIAMS AND WIFE, Respondents; other Defendants not Contesting.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

J. F. Hicklin, Geo. Hall, S. Perry and Gillihan & Brosius for appellant Bank.

Shanklin, Low & McDougal for appellant Robinson.

J. W. Alexander and W. C. Collison for respondents.

EWING, C.

This was a bill, in the nature of a bill in equity, by Wiles, as trustee of an express trust, showing to the court that there were conflicting claimants to the trust fund, and praying the court to construe the instrument creating the trust and direct how the money should be paid.

The answer of some of the appellants insisted that the instrument asked to be construed was not a deed of trust to secure the payment of certain named creditors, but a general assignment for the benefit of all the creditors. This question cannot be reviewed by this court, for the reason that the instrument is not in the record; is not preserved in the bill of exceptions; is not before the court, and hence cannot be examined and passed upon. The circuit court held it to be a deed of trust for the payment of the parties therein named, and its judgment must be conclusive as to that point.

The questions mainly contested in this case are as to the claims of William Robinson and Robert C. Williams. It will, therefore, be necessary to present the pleadings of those parties upon which these questions arise, and the evidence in relation to the contested claims. The controversy arises upon the pleadings of the defendants, as between themselves; all of them being beneficiaries in the deed of trust. The appellants are William Robinson and the Union Bank; but whose interests are by no means harmonious; they appealing upon separate bills of exception.

I.

The Union Bank, appellant, answered, denying that the defendant Robinson, as the security of Wynn, had paid the sums alleged, and, therefore, not entitled to re-imbursement from the trust fund; denying that the instrument was a deed of trust, and charging it to be a general assignment; alleging that Robinson had rented the land in the deed of trust from Wynn for 1877, and owed therefor $1,800, and that he was thereby over-paid what he (Robinson) had paid for Wynn's security, and hence not entitled to any part of the trust fund.

The appellant William Robinson answered and denied that the deed was a general assignment, but alleged it to be a deed of trust; then setting up the sums of money he had paid for Wynn before the sale by the respondent trustee, denied that he owed Wynn $1,800 for rent, and alleged that he had entered into a written contract with Wynn to pay $730 rent, and asks to be re-imbursed out of the trust fund.

Robert C. Williams answered that Melvina Wynn, one of the defendants, was one of the beneficiaries in the deed of trust, as shown by plaintiff's petition; that in January, 1877, Pembroke S. Wynn, with Melvina Wynn, executed and delivered their notes to the said R. C. Williams for about $800, and to Elinor Williams for about $400; that prior to the sale by the trustee, Melvina Wynn, the security, paid off and fully discharged the said two notes amounting to about $1,200; that afterward, in November, 1877, the said Melvina Wynn sold and assigned to this defendant, R. C. Williams, all her right, title and interest in the trust fund in plaintiff's hands accruing to her as one of the beneficiaries by reason of having paid off said debt as security; and asks judgment for Melvina Wynn's interest by reason of the assignment to himself.

The other pleadings are practically unimportant for the determination of the case, except the reply of the Union Bank to the answer of the said Robinson, wherein it is alleged that the written contract for rent between said Robinson and Pembroke S. Wynn was entered into to hinder, delay and defraud the creditors of said Wynn; and that said Robinson rented said land and took charge thereof under and by virtue of an oral agreement, and not under the written contract.

The evidence concerning the claim of Robinson was substantially as follows: Robinson himself testified that he paid the claims mentioned in the deed of trust upon which he was security; giving names, dates and amounts aggregating $1,623.61, and all paid before the sale by the trustee. The witness then produced the written contract between himself and Pembroke S. Wynn, which was in substance that he had rented the land and certain teams and farming implements for 1877 and was to pay therefor $730. He was then examined as to the annual rent value of the land; out of which he testified he realized some $450, after paying what he had advanced. He also testified that before he entered into the written contract with Wynn he knew Wynn owed one Ashbrook, who had sued him, and that Wynn wanted the rent to go to his securities rather than that it should go on Ashbrook's execution. Other evidence tended to show the annual rental value for 1877 of the farm Robinson rented was about $1,600 or $1,700.

Wynn was then introduced, who testified that the contract made in writing was merely drawn up and executed with a view of “keeping Ashbrook off; we were to be governed by the verbal agreement. The verbal agreement was that Robinson should furnish the money to pay taxes in Daviess and Grundy counties, also a coupon I owed for $200. I was to run the farm and control and manage it in the name of...