Younger v. Evers

• Decision Date: 19 October 1933
• Docket Number: No. 31184.,31184.
• Citation: 64 S.W.2d 936
• Parties: W.T. YOUNGER and LOLLIE E. YOUNGER, Appellants, v. GRACE A.S. EVERS and HARRY E. EVERS, ST. LOUIS UNION TRUST COMPANY, a Corporation, and CHARLES H.A. UETRECHT, Trustees Under the Will of GRACE E.L. SCULLY, Deceased; ADAH C.P.L. HOOD, CHARLES H.A. UETRECHT, Guardian of the Person and Estate of GRACE M.L. UETRECHT, n.c.m., B.F. LETSON, G.M. LETSON, C.W. LETSON and NAOMI R.L. RALSTON.
• Court: Missouri Supreme Court

64 S.W.2d 936

W.T. YOUNGER and LOLLIE E. YOUNGER, Appellants, v. GRACE A.S. EVERS and HARRY E. EVERS, ST. LOUIS UNION TRUST COMPANY, a Corporation, and CHARLES H.A. UETRECHT, Trustees Under the Will of GRACE E.L. SCULLY, Deceased; ADAH C.P.L. HOOD, CHARLES H.A. UETRECHT, Guardian of the Person and Estate of GRACE M.L. UETRECHT, n.c.m., B.F. LETSON, G.M. LETSON, C.W. LETSON and NAOMI R.L. RALSTON.

No. 31184.

Supreme Court of Missouri, Division 1.

October 19, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

AFFIRMED.

G.H. Suelthaus and Stout & Spencer for appellants.

(1) The contract between plaintiffs and Grace E.L. Scully, deceased, identified as Plaintiffs' Exhibit G, created an express and continuing trust which was impressed upon the Blair Avenue property for which the farm was exchanged. Sanford v. Van Pelt, 282 S.W. 1022; Davies v. Keiser, 246 S.W. 897. (2) The Statute of Limitations is not applicable in this case, for: (a) The possession of the trustee is that of the beneficiary and there is no adverse holding, 28 Am. & Eng. Enc. of Law. p. 1133; Davies v. Keiser, supra. (b) There was no repudiation of the trust by the trustee during her lifetime. (c) Plaintiffs' right of action did not accrue until Mrs. Scully's death in February of 1921. Koppel v. Roland, 4 S.W. (2d) 818; Stoff v. Schuetze, 240 S.W. 139. (d) No lapse of time is a bar to a direct trust as between trustee and beneficiary. Stoff v. Schuetze, 240 S.W. 139. (e) The statute was not pleaded by defendants. Johnson v. Antry, 5 S.W. (2d) 409. (3) A devisee is not a purchaser for a valuable consideration and he acquires only whatever title testator had, together with all equitable choses in action pertaining to real estate. 40 Cyc. 1996; Davidson v. Dockery, 78 S.W. 624; Kerwin v. Kerwin, 204 S.W. 925. (4) Plaintiffs are not estopped to assert their claim, for: (a) They have done nothing inconsistent with their claim. (b) The defendants have not been induced or misled by acts and conduct of plaintiffs to do or refrain from doing any act to the injury or harm of defendants. Delashmut v. Teetor, 169 S.W. 34; Matthews v. Van Cleve, 221 S.W. 34. (c) The fact that an express trust was created was equally known to both parties. Spence v. Renfro, 78 S.W. 597; Brammel v. Adams, 47 S.W. 934; Adams v. Gossom, 129 S.W. 21; Laughlin v. Wells, 283 S.W. 992; Delashmut v. Teetor, 169 S.W. 34; Boles v. Perry, 51 Mo. 453. (5) Plaintiffs are not guilty of laches precluding their recovery: (a) For there has been no change in the condition of the property or person on account of plaintiffs' nonaction. In fact, defendants have profited by the collection of rents on the property. Rollerstone v. Natl. Bank of Commerce, 252 S.W. 394; Matthews v. Van Cleve, 221 S.W. 34; Cuthbert v. Holmes, 14 S.W. (2d) 444; Troll v. St. Louis, 168 S.W. 175; Adams v. Gossom, supra; Davies v. Keiser, supra. (b) Plaintiffs have not acquiesced in any adverse claim to the property. (c) Where expenditures are made, laches does not bar relief where rents exceed the expenditures made. 21 C.J. 233, sec. 226; Black v. Baskins, 75 Ark. 382; Peabody v. Burri, 255 Ill. 592. (d) The confidential relationship between the parties is an important circumstances in determining whether a delay in seeking to enforce a right constitutes laches. Stevenson v. Smith, 88 S.W. 86. (e) Defendants, who hold in privity of title with plaintiffs, may not plead laches of the latter in asserting and taking. 21 C.J. 216; Nease v. Railroad Co., 195 Fed. 987. (6) Section 182, Revised Statutes 1919, is not applicable. (a) Plaintiffs do not seek to enforce a personal liability of the deceased, but sue to reach the trust property itself. McKee v. Downing, 124 S.W. 13; State v. Akin, 22 S.W. (2d) 836; Brammell v. Davis, 47 S.W. 932; State ex rel. Brouse v. Burnes, 107 S.W. 1097. (7) The court erred in permitting defendants to file an amended answer, withdrawing the general denial and substituting a plea of their title through adverse possession and in failing to strike the amended answer of defendants from the files. Clark v. St. Louis Transfer Ry. Co., 30 S.W. 124; Sec. 819, R.S. 1929; State ex rel. Bankers Life Co. v. Reynolds, 208 S.W. 618; Garton v. Campbell, 39 Mo. 364. Motion to strike amended answer from files proper method to question departure. Skillman v. Ballew, 27 S.W. (2d) 1036.

Bryan, Williams, Cave & McPheeters for respondents.

(1) As to whether it was necessary in any event to plead adverse possession for the statutory period in a case such as this in order to avail of the Statute of Limitations as a defense may, under our decisions, be a matter of doubt. Carson v. Lumber Co., 270 Mo. 245; Land & Implement Co. v. Epright, 265 Mo. 217; Powell v. Bowen, 279 Mo. 293; Courtner v. Putman, 325 Mo. 935; Sanders v. Johnson, 287 S.W. 427. (a) That it was, however, within the discretion of the Honorable trial court to permit the filing of an amended answer to conform to the proof and raise the issue of adverse possession and the Statute of Limitations is clear. Stewart v. Glenn, 58 Mo. 487; Archer v. Merchants, etc., Ins. Co., 43 Mo. 442; Anderson v. Gentry, 49 Mo. 161; Carr v. Moss, 87 Mo. 447; Simon v. Ryan, 101 Mo. App. 18; State ex rel. Bankers Life Ins. Co. v. Reynolds, 208 S.W. 619; Royl v. Golfinopulos, 233 S.W. 1072; Delaney v. Delaney, 245 S.W. 1077. (b) Even were this not so, the plaintiffs, by refiling their reply on May 12th to said amended answer, waived any right to complain of the action of the court in permitting the filing of the same. Lee v. W.E. Fuetterer B. & S. Co., 23 S.W. (2d) 57; Boyd v. Brewing Assn., 318 Mo. 1206; Ingwerson v. Railroad Co., 205 Mo. 336; Grymes v. Mill & Lumber Co., 111 Mo. App. 362; Hill v. Morris, 21 Mo. App. 256; Liese v. Meyer, 143 Mo. 556. (2) Plaintiffs, under the evidence, are barred from any relief by their laches. From 1918 to 1929 there was nothing to prevent the plaintiffs from instituting the same suit which they saw fit to bring in 1929. Yet they, inexcusably, waited for more than ten years — until after Grace Scully's death and after the death of Mr. Waldeck, who handled the property in question for Grace Scully, and until after Mrs. Uetrecht had been declared insane. Equity will refuse relief from such inexcusable delay because of the difficulty in arriving at a safe conclusion as to the matters in controversy and doing justice between the parties where the evidence has been lost through the death of one of the participants in the transaction or of the witnesses thereto. Dexter v. McDonald, 196 Mo. 373, 28 A.L.R. 554; 21 C.J. 234. (a) Nor do plaintiffs in their petition or in their testimony claim ignorance of any facts. They knew the facts at all times. They collected the rents, they say, from 3915 Blair Avenue from 1914 until they left the premises in 1918. They knew, they say, and they allege that these rents were more than sufficient to pay their indebtedness to Grace Scully. Nor do they offer any excuse whatever for their delay, except, supposedly, their testimony as to their alleged poverty from 1918 to 1929. Such poverty does not constitute any excuse for such delay. Perry v. Craig, 3 Mo. 516; Liggett v. Standard Oil Co., 149 U.S. 295; Wolf Mineral Process Co. v. Mineral, etc., Co., 18 Fed. (2d) 483; 21 C.J. 241.

GANTT, J.

This suit was filed in September, 1929. Plaintiffs seek to have a trust declared in certain apartment property, and for an accounting. The petition was dismissed and judgment entered for defendants. Plaintiffs appealed.

In substance, the petition alleged that plaintiffs were the owners of a farm in Franklin County, subject to a deed of trust for $3,200; that on April 27, 1914, they conveyed the farm by warranty deed to Grace Scully, subject to said deed of trust; that said conveyance was made under a written agreement and to secure the payment of money advanced to plaintiffs by Grace Scully; that on September 1, 1914, plaintiffs and Grace Scully traded the farm, subject to said deed of trust, for Blair Avenue apartment property in St. Louis and $300 in cash; that said apartment property was encumbered by a deed of trust for $3,500, and was traded subject to said deed of trust; that on the exchange of properties plaintiffs' total indebtedness to Grace Scully was $831.94, which represented her only interest in the Blair Avenue property; that on October 1, 1914, plaintiffs moved to one of the apartments of said property and occupied same free of rent; that they improved said property, collected the rents for other apartments, which they delivered to Grace Scully, to be applied on their indebtedness to her and for expenses paid by her; that from September 1, 1914, to January 10, 1919, the rents so collected amounted to $3714.87, and that during that time Grace Scully expended on the property and advanced to plaintiffs $2284; that on January 10, 1919, Grace Scully owed plaintiffs $1430.87, the difference between rents collected and money expended by her on said property; that plaintiffs demanded a settlement and Grace Scully told them to wait until the property was sold, and if not sold it was not necessary for them to have a deed to the property as she (Grace Scully) would transfer title to them by her will and would also leave them other property; that plaintiffs, relying upon said representations, made no effort to have said property transferred to them and made no effort to have a settlement with Grace Scully; that Grace Scully died testate on February 27, 1921, and by will gave the Blair Avenue property to the St. Louis Union Trust Company and Chas. H.A. Uetrecht in trust for defendant Grace Evers, with remainder to other defendants; that plaintiff's received nothing under said will; that defendants knew the Blair Avenue property belonged to plaintiffs, but refused to deliver same to them; that defendants have been and now are collecting rents from said property; that plaintiffs demanded...