25 Mo. App. 549 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This suit is brought as a suit in equity, for the purpose of having the defendant declared the trustee for the plaintiff, in respect of a certain piece of real property described in the petition, to compel a conveyance of the property from the defendant to the plaintiff, and for an accounting with him of th¿ rents and profits during the time of his holding the legal title. The court entered a decree in favor of the plaintiff, awarding her the
The court, laying out of view all matters which were controverted upon the evidence, made a special finding of facts, which, though not required by the rule of practice, is admitted by counsel for both parties to be a substantially correct deduction from the evidence; and we find, from an examination of the evidence, that it is not only a correct deduction from the testimony of the witnesses, but that the facts thus found are substantially admitted by the defendant in his answer. These facts (adding some that were not stated by the trial court) substantially were, that the defendant was an attorney at law, and, as such, was retained by the plaintiff to foreclose a deed of trust upon the property in controversy, in which deed the plaintiff was the beneficiary; that, before the sale under this deed of trust, the defendant agreed with the plaintiff that he would bid the property in, take a deed therefor in his own name, and hold the legal title for the plaintiff until he should be reimbursed for his advances and legal services in the premises ; that he accordingly bid the property in at the trustee’s sale and received a deed for the same, the trustee conveying
Upon the clearest principles, the circuit court was right in its conclusions that, upon these facts, the defendant holds the legal title to the property as trustee for the plaintiff; that, after being reimbursed for his advances and services, he is bound, upon her request, to convey the title to her; and that he is also bound to account to her for any rents and profits which he has received from the property while so holding the legal title, in excess of Ms advances, disbursements, and the reasonable value of his services. There was no evidence fixing the length of time during which the defendant agreed to hold the legal title for the plaintiff, upon buying the property in for her at the first foreclosure sale. Upon this point the defendant, in his answer, admits
The point that the pleadings made one issue, and the cause was tried upon another issue, was not made at the trial by objection to any class of evidence which was-tendered ; nor is it well taken. The conclusion of the court, that the defendant was bound to convey and account as a trustee, is supportable upon the admissions of the answer alone.
With the concurrence of Judge Rombauer, the judgment will be affirmed.