Laughlin v. LaughlinLaughlin v. Laughlin
IV. Nevertheless, the bonds are valid bonds, though the tax may be uncollectible. The city treasurer cannot refuse to perform his statutory duty because the law, as a part of the bonds, may require a construction of them which somewhat modifies the language used in them. For this reason the alternative writ is made peremptory.
All concur; David E. Blair, J., in the result.
APPELLATE PRACTICE: Law Action: Substantial Evidence: Laches. An action for a balance due on an open and running account extending through many years, tried by the court sitting as a jury, is an action at law, and if there is any substantial evidence to justify the findings, no instructions being asked or given, the judgment will be affirmed on appeal. And such is the rule where, although laches was pleaded in the answer, no affirmative equitable relief was prayed. And the same rule applies to the findings of the trial court on a counterclaim set up by defendant for money loaned to plaintiff. ——: Equity: Accounting. Where one count of plaintiff‘s petition is in equity for an accounting for shares of stock loaned to defendant, and for the proceeds of the sale of tracts of land to which defendant acquired title and held in trust for plaintiff, the court on appeal will consider the evidence de novo. And if that relating to the sale of the stock is all oral, is conflicting and equally balanced, the court will not disturb the findings of the chancellor on that item; but if the evidence relating to the trust in the lands is not all oral, but is partly in the form of letters signed by defendant and other pertinent documents, the court will on appeal consider the whole evidence and make such findings as it authorizes. - IMPLIED TRUST: Parol Agreement: Statute of Frauds. To prevent frauds courts of equity will charge a person as trustee who buys land at an execution or trustee‘s sale under a parol agreement with the owner of the equity of redemption to hold it in wholе or in part for such owner under certain terms and conditions, and will enforce such an agreement as an implied trust for the owner. The Statute of Frauds requiring express trusts in land to be in writing, has no application to such implied trusts.
- ——: Acknowledgment: Repudiation: Limitations. Where defendant‘s letter to plaintiff acknowledged that he held the title of certain lands under an implied trust that plaintiff was the actual owner, and expressed no intention to repudiate such fiduciary relation, the Statute of Limitations did not begin to run in his favor until plaintiff had knowledge that he had repudiated it. Although not a technical express trust, because not in writing as required by the statute, but, having been created by parol agreement and convention of the parties in property of which plaintiff was already the equitable owner, it was not an involuntary trust, and under such circumstances the Statute of Limitations does not commence to run until the trust is repudiated to the knowledge of the cestui que trust, the rule being the same as in case of a technical express trust.
- ——: ——: ——: ——: Removal from State. Where defendant in a letter dated in 1898 acknowledged that he held title to certain Missouri lands under an implied trust that plaintiff was the equitable owner and expressed no intention to repudiate such fiduciary relation, and if he ever repudiated the trust with the knowledge of plaintiff it was after said letter was written, and two years later, or in 1900, defendant removed from Missouri and never returned to reside, the Statute of Limitations after that time ceased to run in his favor under any circumstances, and plaintiff‘s suit, brought in 1917, fоr the proceeds of the sale of the land, was not barred by limitations.
——: Accounting: Laches. Where defendant was a trustee for plaintiff under an implied trust, and on numerous occasions during the long years which elapsed between the creation of the trusteeship and the bringing of his suit for an accounting, requested defendant verbally and in writing to settle; for years tried to induce him to arbitrate, which he delayed and postponed because of the press of other matters; they were brothers, and the defendant, although legally domiciled in Missouri until 1900, removed from the State in 1900 and was out of the State much of the time from 1888 until the suit was brought in 1917, no fault or laches can be attributed to plaintiff for not bringing his suit sooner. - ——: ——: Sale of Lands: Duty of Trustee. Where defendant held the title of lands under an implied trust that plaintiff was the actual owner, and sold them, he cannot excuse himself from paying the amount of money recited in the deeds as the consideration, by simply testifying that he did not sell the lands and did not receive anything for them; but having by letter informed plaintiff that the lands had been sold, that he had not yet received the purchase price, but expected to receive it, he must show what the lands sold for; if the consideration recited in the deeds he made was not truly stated, he must show what it really was, and if he did not receive it he must show why he did not, and that it was not through his fault.
Appeal from St. Louis Circuit Court.—Hon. John W. McElhinney, Judge.
AFFIRMED (in part); REVERSED AND REMANDED (in part, with directions).
E. McD. Stevens for appellant.
(1) The trial court erred in finding for respondent on the first count of the petition, by applying the Statute of Limitations to appellants’ side of an accоunt that ran to June 18, 1914, when suit was filed on October 22, 1917, because the acount began as far back as January 1, 1878, when it was shown to be a continuous account from 1878 to 1914, and was so treated by both parties in their correspondence and agreement to arbitrate up to the year 1917. Chadwick v. Chadwick, 115 Mo. 581; Ring v. Jamison, 66 Mo. 424; Bank v. Thayer, 184 Mo. 61. (2) The court erred in finding for respondent on the second count of appellant‘s petition, as to the Monegaw Springs lands; when respondent admitted that all this 1650 acres of land belonged to appellant; that respondent had no interest in it; that the title was put in his name for some forgotten reason; that he conveyed these lands to others by warranty deeds; and that he paid not one dollar of the proceeds to appellant; whereby a resulting tract was established, and appellant‘s evidence showed clearly that appellant discovered respondent‘s frauds only three days before this suit was filed, and the doctrine of laches does not apply.
Abbott, Fauntleroy, Cullen & Edwards for respondent.
(1) Plaintiff‘s action is not an action brought to recover a balance due on a mutual open and current account where there have been reciprocal demands between the parties. The account sued on has none of the characteristics or features of a running account.
SMALL, C.—The petition, filed in 1917, is in two counts. The first count is at law for a balance of $20,404, due on open and running account, extending from January, 1878, to June, 1914. The second is a cоunt in equity, for an accounting for 20 shares of stock of the face value of $2,000 in a coal company, which stock plaintiff loaned to defendant in 1883; also for the proceeds from the sale of two tracts of land in St. Clair County, Missouri, which defendant acquired title to in 1883 and held in trust for plaintiff.
The defense to both counts was a general denial, the five and ten-year Statutes of Limitations, and laches. The answer also contained several counterclaims for money loaned plaintiff by defendant after 1898.
As to the count in equity: The evidence shows that the plaintiff and defendant were lawyers and brothers, the defendant being the elder. He went to St. Louis and commenced the practice of his profession in 1869. He was married, with a family. Plaintiff, then single, went to St. Louis in 1877, and the brothers occupied the same office for many years. The plaintiff soon acquired a profitable business. As early as 1878, he commenced to loan defendant various sums for household and other expenses, on account of which defendant made payments from time to time. Defendant kept no accounts, but left that matter to plaintiff. Their relations were intimate and friendly for many years. In fact, until about 1898, when plaintiff began to insist on a settlement. In the eighties plaintiff did a large amount of work for one Funkhauser, who had large property interests, but had made a bad failure. For his fee, by verbal contract with said Funkhauser, plaintiff was to receive the land in St. Clair County in question here. It consisted of two tracts, one the Sac River Farm of about 1,000 acres, and the other the Monegaw Springs Property of about 1,600 acres. There were two deeds of trust on the property, aggregating about $11,000, subject to which plaintiff was to take the property. Funkhauser did not make a deed to plaintiff, but stood ready to do so on demand. In sоme manner not clearly shown, plaintiff got the deeds of trust reduced to $2,500 in 1883. He then approached defendant and told him that if he would pay off the $2,500 incumbrance on the property, plaintiff would give him half the proceeds from the sale of the Sac River Farm.
Defendant‘s testimony is that he never agreed, but always refused, to pay off the $2,500 mortgage. But after visiting the property in 1883, as detailed by plaintiff, he agreed to buy it in at the trustee‘s sale for the amount of the debt and costs for himself, and if he ever made anything out of it, to give plaintiff something for putting him on to the bargain. That accordingly, such trustee‘s sale was had and defendant bid in the property, paid the purchase price, $2,500 and costs, to the trustee, who made him a deed, and defendant was ever thereafter the exclusive owner of the Sac River Farm. But he claimed no interest in the Monegaw Springs Property, which he considered of no value, but permitted plaintiff to have the sheriff‘s deed, under salе for taxes, to that property made to defendant for the plaintiff. Defendant further testified that he never received a cent from the Monegaw Springs Property, and if he ever made any deeds therefor they were brought to him by the plaintiff. That plaintiff, himself, transacted the business and received the consideration, if any, for all such deeds. That more than ten years before the suit was filed, plaintiff abandoned Monegaw Springs and said there was nothing there. Defend-
“Interest in the Sac River Farm
“20 shares Straight Creek Stock......$ 200.00
Trip to W. Va., not counted.......... 60.00
Cash advanced by J. L. on farm....... 350.00
Wood sold
Collected by J. L. from Carter & Co. .. 78.00
Insurance............................ 1500.00
Cash advanced by H. D. L...............”
At the time defendant introduсed this statement in evidence, lines were drawn through the above items. Defendant testified, he had it in his possession ever since 1891 or 1892, but that it was in the same condition as when handed to him by plaintiff. That the date is in the handwriting of plaintiff‘s wife. That the lines drawn through the items were drawn through by plaintiff in defendant‘s presence. In 1892, when plaintiff mentioned the Sac River Farm in discussing this statement, defendant said: “‘Julian, you know that that was a disastrous investment; I not only did not make money, but I lost money.’ He said, ‘Yes, I guess you did.’ Then he said I sold wood. I said to him at that time, ‘You know that I never sold a stick of wood from that place.’ . . . We went through these items. . . . The next item is the taxes, which he claimed to have advanced for the Sac River Farm. I said, ‘Julian, don‘t you think that, in view of the fact that when Ed Rannels transferred his claim against you for $3,500, you knew he meant to borrow it. Don‘t you think the tail should go with the hide?’ He said, ‘Yes, I think that is fair.’ So, he drew his pen through that. The next item was the insurance, $1,500. I don‘t remember just what we said about that; but I know I said, ‘You are not interested in that insurance.’ And he drew his pen through that.
Defendant admitted writing a letter tо plaintiff dated February 5, 1898, in which he referred to said statement and items therein, as follows:
“This statement ignores my check of Sept. 17, ‘89, for $60, the J. B. Johnson note for $350 of Aug. 10, ‘85, and all such moneys as you may have received from the warehouse, not included in your statement.
“It also ignores the St. Clair County lands, which I believe will show a profit to you, if those at Monegaw are ultimately paid for, but none unless they are. It also ignores the collection made by you from Carter & Co., and the trip to W. Va., ‘not counted.’ All of which are referred to and then erased at the end of your statement.
“In addition to all this, I have signed and herewith return to you the stipulation sent me for an arbitration before Robt. L. McLaran. I notice that it provides that he shall make his award ‘not later than the first of March, 1898.’ This I assume you do not mean. I ask no unreasonable delay, but my business compels me to be in New York in all probability the rest of this month, and although you have prodded me in a way that I never would have you, I cannot believe you insist upon my dropping everything else, and without delay enter upon a trial of this unfortunate controversy, regardless of results to me. If in this I am mistaken, I shall expect you to advise me.”
Nothing came of this agreement to arbitrate. It was delayed and put off largely at the request of the defendant, as were similar efforts of plaintiff to arbitrate made for several years before.
By agreement, plaintiff read transcript of judgment in favor of defendant against Boots for timber taken off the Sac River Farm, as follows: “March 29, 1885, $1,000, satisfied June 17, 1889, by defendant‘s attorney.”
Plaintiff also introduced in evidence official copies of four deeds made by defendant; one in 1883 to James W. Kollenberg, consideration $700; one in 1884 to Henry Fitch, consideration $300; one in 1886 to James Abnot, consideration $1,700 (in another place in the record, this consideration is stated to be $700); one dated July 29, 1895, to Morgan W. Cleveland, consideration $1,300. These deeds conveyed lands which were part of the Monegaw Springs Property. The evidence as to sales in Laughlin‘s Addition to Monegаw Springs was too indefinite to be of any probative value. Plaintiff denied that he had ever received any money from any sales of property in Monegaw Springs, or had anything to do with making any such sales.
Plaintiff‘s witness, E. W. Rannels, testified: That he invested $3,500 in the Montezuma Irrigation Ditch, and in 1889 bought 840 acres of the Sac River Farm from defendant for which he turned over to him his interest in the Montezuma Ditch and gave his note for $5,000; which he paid. That he had no claim against plaintiff for $3,500 so invested. “I went into it with my eyes open.”
In one of defendant‘s counterclaims, he sued on $3,500, as a claim against plaintiff assigned to him by said Rannels.
No instructions were asked or given.
After taking the case under advisement, the court found for the defendant on both the law and equity counts in the petition and against the defendant on all his counterclaims except the 3rd, on which it found and rendered judgment for the defendant and against the plaintiff in the sum of $264.
After unsuccessfully moving for a new trial, plaintiff appealed to this court.
I. The issues raised by the first count and the answer thereto were triable at law. While laches was pleaded in the answer, no affirmative equitable relief was prayed for. Therefore, the first count was a law suit, not a suit in equity, and we cannot review the facts de novo. But, if there is any substantial evidence to justify the finding of the lower court, no instructions having been asked or given, we must affirm its action. [Koehler v. Rowland, 275 Mo. 573.]
II. We have examined the evidence carefully аnd cannot see how we can interfere with the finding of the circuit court as to the first count. It was for that court,
For the same reason, we cannot disturb the judgment against plaintiff on the 3rd counterclaim of defendant.
III. The second count of the petition: This being a count in equity, we must consider the evidence de novo.
(a). As to the Straight Creek Coal Company stock the evidence was all oral and was so conflicting that we cannot disturb the finding of the lower court concerning that item.
(b). As to the Sac River Farm and Monegaw Springs Property: We have set out the salient features of the testimony relating to this property in our statement of facts. The transactions took place years before the suit was tried, and, we think, the evidence of the parties given at the trial shows that the defendant‘s memory, not unnaturally on that account, was somewhat at fault as to some important details. Therefore, particular regard should be paid to any statement in writing made by the parties. It is admitted by the defendant that, in 1891 or 1892, he received from plaintiff Exhibit “6,” dated February 9, 1892, at the end of which were the following items or claims made by the plaintiff against the defendant:
“Interest in Sac River Farm
Cash advanced by J. L. on farm.......$ 350.00
Wood sold
Collected by J. L. from Carter & Co. .. 78.00
Insurance............................ 1500.00
Cash advanced by H. D. L...............”
Defendant testifies that lines were drawn through these items by the plaintiff, under the circumstances and
“This statement ignores my check of Sept. 17, ‘89, for $60; the J. B. Johnson note for $350 of Aug. 10, ‘85, and all such moneys as you may have received from the warehouse, not included in your statement.
“It also ignores the St. Clair County lands, which I believe will show a profit to you, if those at Monegaw are ultimately paid for, but none unless they arе. It also ignores the collection made by you from Carter & Co., and the trip to W. Va., ‘not counted.’ All of which are referred to and then erased at the end of your statement.”
This language, without reference to when or by whom the lines were drawn through the items mentioned, contains no denial of plaintiff‘s claim for an interest in the Sac River Farm, but clearly indicates and acknowledges that plaintiff is interested therein as part of the St. Clair County lands, because the Sac River Farm alone is mentioned in the statement to which the letter refers, and also acknowledges plaintiff‘s interest in the Monegaw Springs Property, as another part of said lands. Also, defendant says, that he believes the St. Clair County lands will show a profit to plaintiff if those at Monеgaw Springs are ultimately paid for, but none unless they are. Defendant could not have thus written in 1898, if plaintiff never had any interest in the Sac River Farm, and had handled Monegaw Springs himself, and defendant had had nothing to do with it and know nothing about it except to sign deeds when presented by plaintiff, as testified to by plaintiff at the trial. We think defendant‘s lan-
We hold that the truth of this controversy as to the manner that both pieces of the property, the Sac River Farm and Monegaw Springs (which defendant admits he held for plaintiff), were acquired and held by defendant, is with the plaintiff. We have no reasonable doubt of it.
Under such circumstances, that defendant was trustee for plaintiff there can be no question. The Statute of Frauds requiring express trusts in land to be in writing
Consequently, we hold that defendant was trustee for plaintiff as to one-half the proceeds of sale of the Sac River Farm and all the proceeds of sale of the Monegaw Springs Property. Defendant‘s letter of February 5, 1898, shows that defendant had never before that time repudiated, but then still recognized, the fiduciary relation under which he held the property. Said letter exрresses no intention to repudiate such relationship. Although the trust was not a technical express trust, because not in writing, as required by our statute, it was not an involuntary trust, but was created by consent and convention of the parties in property of which plaintiff was already the equitable owner. Under such circumstances, the Statute of Limitations does not commence to run until the trust is repudiated to the knowledge of the cestui que trust, the rule being the same as in case of a technical express trust. [25 Cyc. 1159, and cases cited; Hunnicutt v. Oren, 84 Kan. 460; Hanson v. Hanson, 78 Neb. 584, 589-93.]
We hold, therefore, that if there was ever any repudiation of defendant‘s trust with knowledge to the plaintiff, it was not until after defendant‘s letter of February 5, 1898.
It is admitted that in 1900, two years after the date of said letter of February 5, 1898, the defendant removed permanently from the State and never returned to Missouri to reside. After that time, the Statute of Limitations ceased to run under any circumstances. [
Nor can we allow the defense of laches. The defendant was a trustee for the plaintiff, and on numerous occasions, during the long years which elapsed between the creation of his trusteeship and the bringing of this suit, the plaintiff requested verbally and in writing that defendant make him an accounting, and for years tried to get defendant to arbitrate, which defendant delayed and postponed, not necessarily wilfully, but because perhaps he was busy with other matters or out of a habit of procrаstination, which largely possesses some lawyers—as well as others—and is of a truth “the thief of time.” Besides, the evidence shows, that while defendant was legally domiciled in this State until 1900, when he removed permanently from the State, he was much, if not most of the time, out of the State personally from about the year 1888 until this suit was filed. So, the close relationship and friendship which existed so long between these brothers would naturally stay the hand of either to unsheath the sword of the law against the other. We can attribute no fault nor laches to the plaintiff for not bringing his suit before he did.
Consequently, we hold that defendant is responsible to the plaintiff for one-half of the proceeds of sale he received from the Sac River Farm, with interest at the rate оf six per cent per annum since he received such proceeds; also, for one-half of the insurance money he received from the loss of a building on said farm by fire (less amount he spent for building barn), with like interest, since he received it. It is admitted that defendant sold the Sac River Farm to Rannels in 1890 and received $5,000 therefor; that defendant received $1,500 insurance about 1890 from the destruction of a building on the farm by fire. But defendant paid out about half of that sum in building a barn. So, defendant should be charged with $750 balance due on insurance received. It is also shown in evidence that defendant sold quite an amount of timber off of the Sac River Farm to one Boots, but there
The account as to the Sac River Farm against the defendant and in favor of the plaintiff, with interest, may, therefore, be stated as follows:
| 1890, | To one-half of $5,000 received from Rannels from sale of land................$ 2,500.00 |
| To one-half of $9,000, being interest on the above amount from 1890 to date, at the rate of six per cent per annum.................................. 4,500.00 | |
| 1890, | To one-half of $750 balance of amount due for insurance received........... 375.00 |
| To one-half of $1,350, being interest on above balance for insurance from 1890 to date at the rate of six per cent per annum......................... 675.00 | |
| Total........................$ 8,050.00 |
As to Monegaw Springs: The transcripts of deeds introduced in evidence by plaintiff show that defendant conveyed land which was part of the Monegaw Springs property by four different deeds, reciting an aggregate consideration of $4,000 in one place in the record, and $3,000 in another—that last deed being dated July 29, 1895. It is true, defendant denies receiving anything for these lands in his testimony and denies making any sales thereof himself, but in his letter of February 5, 1898, above quoted, defendant informs plaintiff of lands sold in Monegaw Springs from which he had not yet received the money, but which he expected to receive. Being the trustee of these lands for plaintiff, it is the duty of the defendant to account for the proceeds of the sale thereof. It is not sufficient accounting for him to say that he got nothing and knows nothing about such sales. He must show what these lands sold for, if the considеration was not truly stated in the deeds which he made thereto, and if he did not receive the considera-
We, therefore, reverse the decree of the circuit court on the second count in the petition, and remand the case to said court, with directions to set aside its judgment on said second count heretofore rendered, and enter up judgment thereon in favor of plaintiff and against the defendant, for the sum of $15,550, with interest thereon at the rate of six per cent per annum from the first day of January, 1921, until paid.
The judgment heretofore rendered in the circuit court against the plaintiff on the first count of the petition and the third counterclaim of the answer, is affirmed.
We further order, that each party pay one-half of the total costs in the case in the Circuit as well as in the Supreme Court. Brown and Ragland, CC., concur.
PER CURIAM:—The foregoing opinion by SMALL, C., is adopted as the opinion of the court. Woodson, Higbee, David E. Blair and Walker, JJ., concur; James T. Blair, C. J., and Graves, J., dissent; Elder, J., not sitting.