*1 MISSOURI, SUPREME COURT OF Laughlin. levy city lawfully case. If the full amount of the might required, any year, pay make should not be expenses, (the current the inclusion of an amount whole being allows) within the maximum the statute sufficient pay, city the bond tax would be lawful. The would not bound, however, forego right levy be its and use for expenses levy by current the full tax it is authorized to city statute. To hold otherwise would be to hold that a policy could defeat the cash basis of the constitution getting the device of into debt. Nevertheless, bonds,
IV. the bonds are valid though may city the tax be uncolleotible. The treaèurer perform statutory duty cannot refuse to Bonds Valid law, bonds, may because the as a Nevertheless. require a construction of them which some- language what modifies the used in them. For this peremptory. reason the alternative writ is made concur; Blair, J., All David E. in the result. Appellant, LAUGHLIN, JULIAN v. HENRY D. LAUGHLIN. Banc, January In 1922.
1. APPELLATE PRACTICE: Law Action: Substantial Evidence: open running Laches'. An action for a balance due on an ac- extending through many years, sitting count tried the court jury, law, as a is an action at and if there is substantial evi- justify findings, given, dence to fhe no in~tructions asked or judgment appeal. the where, although will be affirmed on And such is the rule pleaded answer, laches was no affirmative equitable prayed. applies relief was And the same rule findings up by of the trial court on a counterclaim set money plaintiff. loaned to OCTOBER Yol.
Laughlin v. 2. - n : plaintiff’s pe- Equity: Accounting. one count of Where equity accounting shares of stock loaned tition is defendant, proceeds tracts of land and for the of the sale *2 acquired in trust for title and held to which' appeal And if evidence ele court on will consider the novo. the conflicting relating oral, and that to the sale of the stock is all is findings equally balanced, the of the court will not disturb relating item; the trust but the evidence chancellor on that to partly oral, of form letters in the lands not all but is is documents, signed pertinent court other defendant and findings appeal make such consider the whole evidence and will on
as it authorizes. Agreement: pre- of Frauds. IMPLIED TRUST: Statute To 3. Parol equity charge person who as trustee vent frauds buys of will courts agrеe- parol under a land an execution or trustee’s sale at redemption equity in hold it of to ment with the of owner condi- under certain terms and such owner whole or in tions, for implied agreement trust enforce such an and will express requiring in trusts Frauds owner. The Statute of for the implied writing, application such trusts. has to to be in no land Acknowledgment: Repudiation: de- Limitations. Where -:4. acknowledged plaintiff that he held the title letter to fendant’s implied plaintiff was under an trust lands certain of repudiate expressed owner, fidu- intention to such and no actual begin ciary relation, not run did to of Limitations the Statute knowledge repudiated plaintiff that he until in his favor writing trust, express Although not because in a technical it. but, having by parol statute, required been created 'the parties agreement of which and convention of owner, equitable already plaintiff it was not an involun- tary trust, of Limita- circumstances the Statute under such repudiated trust run until the to commence to does tions que trust, knowledge the same as the rule the cestui of express trust. technical case of a State. de- -: -: Removal from Where -: -: 5. acknowledged title that he held in 1898 in a letter dated fendant implied plaintiff trust lands under an certain Missouri repudiate expressed equitable intention owner and was the repudiated relation, fiduciary the trust he ever and if such written, knowledge plaintiff said letter was it was after 1900, years later, Missouri from defendant removеd or two reside, Limitations after that the Statute never returned to any circumstances, and under favor to run his time ceased proceeds brought suit, the sale plaintiff’s land, limitations. not barred SUPREME COURT OF MISSOURI, Laúghlin Laughlin, La,ches. Accounting: 6. -: Where defendant was a trustee for implied trust, under an and on dur- numerous occasions ing long years elapsed tlie between the creation of trusteeship bringing accounting, and the suit for an re- quested verbally settle; years and in arbitrate, tried delayed induce postponed him which he press matters; they because brothers, of other and the although defendant, legally domiciled in Missouri until re- moved from the State in was out of the much State 18)88 brought time from until the suit was no fault or bringing laches can be attributed to for not his suit sooner. -: Duty —--: Sale of Lands: of Trustee. Where defend- ant implied held the title of lands under an trust owner, them, was the actual and sold he cannot himself excuse paying money the amount of recited in the as the deeds consideration, by simply testifying that he did not sell the lands anything them; having by and did not receive in- letter *3 sold, formed that the lands had been that he had not yet purchase price, expected it, received to receive he must for; show what the lands sold if the consideration recited in the truly stated, really deeds he made was not he must' show it what -was, why did not, not receive it he must show he did through and that his fault. was Appeal from Louis Circuit St. Court.—Hon. John W.
McElhinney, Judge. part); {in part, {in Affirmed AND Reversed remaNdеd directions). with appellant. McD. for E. Stevens (1) finding’ respondent Tlie trial court erred in for petition, by applying on the first count of the the Statute ’ appellants of Limitations to side of an account that ran when 18, 1914, to June suit was filed on October 22,1937, began January because acount far as back as when it was shown be a continuous account from .to 1878 parties to 1914, so treated was both their corre- spondence agreement up year arbitrate 1917. Ring 115 Chadwick v. Mo. v. Chadwick, 581; Jamison, 1921. 475 Yol.
LangMin v. Thayer, (2) 184 court 66 Mo Bank v. Mo. 424; respondent finding count erred appellant’s petition, the second Springs lands;
as to
respondent
this
that all
1650 acres
admitted
belonged
appellant;
respondent
no inter-
land
that
put
in his name for some
est in
the title was
it;
conveyed
forgotten
these lands to others
reason; that
warranty
not one dollar
deeds; and
appellant; whereby resulting
proceeds to
tract
appellant’s
clearly
evidence showed
established,
respondent’s
only
days
appellant discovered
frauds
three
suit
and the doctrine of
does
filed,
before this
laches
McMurray
apply. R.
2869;
S.
sec.
McMur-
v.
Leveridge,
ray, Mo.
' Laughlin v. correspondence appellant. (5) missions in Ms The respondent finding- court erred not was a trustee Springs ex as to the and Sac River maleficio properties. (6) finding farm respondent The erred in court unsupported testimony ágainst
on his
as.
requests
written contracts,
notes,
letters, drafts,
money,
testimony
eight opposing
and the
witnesses.
(7)
excluding
The court
erred
the answer
C.
of T.
interrogatories
4th
5th
in his
and
de-
position
excluding
Payne
and in
answers
Jesse B.
interrogatories.
parol
to his 8th
9th
Because
evi-
dence is admissible to estаblish the facts as to
result-
ing trust, as such
trusts are
witMn the Statute of
excepted.
expressly
Frauds
are
R. S.
sec.
1909,
Cooper,
Plumb v.
121
2869;
668;
Mo.
Cardit v. Maxwell,
Leahey
142 Mo.
v.
266;
Mo.
Witte,
207;
123
v.
Cason
Champion,
47;
28 Mo.
Richardson
Cason,
v.
143
538;
Mo.
Damschroeter
51 Mo.
Thias,
v.
100; Shaw v. Shaw,
(8)
holding
Mo. 594.
erred in
court
that the Stat-
ute of Limitations would run in favor of a defendant,
previously
who,
a resident of Missouri
to 1889,
absents himself from the
from
State
about 1888 until
some indefinite time after 1900 on
transaction that
before 1900. R.
1897;
occurred
S.
sec.
Orr v. Wil-
McMurray McMurray,
marth,
212;
95 Mo.
v.
180 Mo. 526;
Leveridge,
Independent
Sauter v.
Mo.
of Sec-
suspends
during
tion
the common
law
the statute
absence from the
App.
State. Cobb v. Houston, 117 Mo.
appellant
respondent, having
645. And
entered into
agreement
an arbitrаtion
in which
all technicali-
prevents
running,
ties
the statute
waived,
inde-
pendent
respondent’s
Bridges-
from the
absence
State.
(9)
Stephens,
Abbott, Edwards & Cullen ent. brought
(3)
is not
action
to re-
Plaintiff’s action
an
open
mutual
and current account
cover a balance due on a
reciprocal demands between the
where there have been
parties.
on has
The account
none of
charactеr-
sued
running
R. S.
sec.
or features of a
account.
istics
Hogg,
App.
Chapman
135 Mo.
Leoffel v.
654;
v.
1893;
Sidway
App.
Lumber
Mb.
133;
Co.,
11
v.
187
Mo.
Hoss,
pp.
2
91, 92,
730, 731;
R.
L.
Wood on
17
C.
secs.
649;
p.
(2)
pro-
(4 Ed.)
426.
277, 280,
Limitations
secs.
reference to
absence
our statute with
of the
vision of
applies only
is
if lre
a resident
State
debtor
Apple-
accrues. Mathews v.
when the cause of action
App.
berry;
v.
55 Mo.
Clark,
105;
Pike
Mastín
615;
57 Mo.
App.
v.
Thomas
22 Mo.
622;
Black,
v.
33 Mo.
Tilleston,
Daughtery,
Scroggs
497;
53
Orr v. Wil-
Mo.
v.
330;
Bogliolo, 5
258;
Mo.
8 S. W.
Smith v.
Mo.
95
marth,
* (3)
is
The fact that
the debtor
outside of
344.
prevent
running
where
statute,
State does
State,
remains within
so
the residence
debtor
will
on him
authorize
service can
be had
v,
Bensley
App.
personal judgment.
Mo.
Haeberle, 20
(4)
648;
The defense to both counts denial, ten-year five and Limitations, Statutes of and laches. The answer also contained several counterclaims money plaintiff by loaned 1898. defendant after Vol.
Lauglüin. v. reply counterclaims. answer traversed very petition first The evidence on the count carefully. It was examined voluminous. have We upon the verbal conflicting probative force and its rested testimony There was defendant. out was made a case instrument defend- were by documentary Nor evidence. plaintiff’s case. to make out ant’s admissions sufficient equity: shows The evidence As the count lawyers brothers, the and defendant Louis He went to the elder. St. profession practice in 1869. He of his commenced the single, family. went then Plaintiff, married, *7 occupied the same the to Louis in brothers St. and acquired plaintiff many years. soon office for early to profitable commenced As business. other household for and defendant various sums loan payments expenses, on aсcount which defendant kept but left accounts, Defendant from time to time. plaintiff. intimate relations Their that matter to years. many friendly until about fact, In and plaintiff began In insist on a settlement. when to one eighties plaintiff large amount work did a large proporty but interests, who Funkhauser, contract verbal For fee, failure. his made a bad plaintiff land receive was to Funkhauser, with said County question of two here. It in consisted Clair St. acres, and 1,000 Farm of about the Sac River tracts, one Monegaw Springs Property 1,600 about the other the property,, on the two of trust acres. There were deeds was; subject plaintiff aggregating to which about deed, property. not make a to take the Funkhauser did plaintiff, reаdy In. on demand. to do so but to stood deeds; got plaintiff clearly some manner not shown, approached', then of trust reduced 1883. He pay $2,500' off defendant and told him that if would give him plaintiff property, incumbrance on would Riyer Farm. proceeds half the from the sale of the Sac SUPREME COURT OF MISSOURI, Laughlin v. both, Thereupon, property, then which was visited possession Mcllheny, of Mr. relative of Funkhauser. Mcllheny, plaintiff’s who about the deal seemed know presence recog- Funkhauser, defendant, plaintiff nized as the and, owner turned over effect, possession or both and defendant. upon spent days hunting Plaintiff and defendant several Up examining point, property. to this there is hardly dispute. a substantial At we have no dif- least, ficulty determining far. such to be facts thus Plaintiff further testifies satisfied property agreed proposition, with the agreed pay then there off the deed of trust and manage prop- take over the and control and erty satisfactory until a could be sale made, paying meantime, no rent. taxes, itWhen should proceeds be sold, to have one-half of the from the sale of the River Farm and pro- one-half, and was to have the whole of the Monegaw Springs ceeds from Property. the sale of the says, they Plaintiff further, to St. returned purposes suggested Louis, defendant, his own, pieces conveyed the title to both be should to him parties, agreed would hold them for both aforesaid. That signing some hitch arose as to Mrs. Funkhauser thereupon, agreed plain- deed; and, it was between *8 tiff and defendant, to secure title which defend- agreed, ían towas hold, before paying instead of off the judgment $2,500 incumbrance and a for taxes taking and from they deed Funkhauser, would let the deed of buy trust be and foreclosed defendant would property the at the trustee’s sale. was This done paid 1883, and the'defendant trustee $2,500 and costs, the full amount of the incumbrance. He received trus- a property tee’s deed for all the covered the deed which trust, included the whole of the River Farm Monegaw Springs Property. and the judg- ment for taxes was of the acres about 600 481 Yol. LaugMin,
LaugMin v. Monegaw Springs Property, get it this, and to title to agreed go This sale. to sheriff’s was should place time in 1883. Plaintiff bid took about the same property but the hid $25, for himself, agreement deed made the was defendant sheriff’s says that afterwards, to the defendant. Plaintiff also especially thereafter, from time to about and time, vainly sought accounting defendant, he from which promise always put a to account in off with good showing, hut he never did. future and make a into in Chi- About went other business 1888, defendant large cago consequently away and from St. Louis was part, if not the of the time thereafter. But his most, legal Louis, domicile remained in St. until Chicago up permanent and so remained was his home brought. time the suit was testimony agreed, al- never but
Defendant’s is that he mortgage. ways рay $2,500 off the But after refused, by plaintiff, visiting property in detailed agreed buy for he it in sale the amount at the trustee’s for if ever himself, made debt and costs he something give putting anything out of it, accordingly, bargain. trustee’s That such him property, paid bid sale had and was who price, purchase costs, trustee, defendant was ever thereafter made him deed, River Farm. But he the Sac claimed exclusive owner of Property, Springs Monegaw no interest permitted plaintiff to have value, of no considered to that under sale taxes, sheriff’s deed, plaintiff. Defendant further for the made to defendant á cent never received testified Springs Property, if deeds therefor ever plaintiff. plain- brought they That to him the businеss received the con- transacted tiff, himself, any, That all more than ten such deeds. sideration, years Mone- abandoned filed, before suit Springs nothing gaw there. Defend- and said there “ Mo—31 *9 SUPREME COURT OF MISSOURI,
Laughlin v. getting plain- ant a statement account admitted tiff February out afterwards dated 9,1892, plaintiff relating when he had a conference thereto. with following charges against That account defend- ant at the close thereof: " Interest River Farm " Straight 20 shares Creed 200.00 Stock.$
Trip counted. 60.00 Va.,W. Cash advanced L. on farm. 350.00 J. sold Wood by J. L.
Collected from Carter & Co. .. 78.00 Insurance. 1500.00 ” Cash advanced H. D. L. At the time defendant introduced this statement in through evidence, lines were drawn the above items. De possession fendant it in testified, his ever since 1891or that it 1892,but same condition as when by plaintiff. handed him That the inis the hand date n wife. That the lines drawn through through by plaintiff the items were drawn in defendant’s d presence. In mentione the Sac m discussing Far this statement, defendant . . . you said: know that was Julian, in disastrous only money, I not vestment; not make did but I losi money.’ guess you He I said, 'Yes, did.’ Then he said I wood. sold I him at that ‘You time, said know that place.’ I never sold stick of wood from that . . . . through . We went these items. . . The next item is taxes, he claimed to have advanced for the , you Sac River Farm. I Julian, don’t think that, said of the fact that view when Ed Rannels transferred his you you claim for knew meant to you go think borrow it. Don’t the tail should fair.’ He I think said, ‘Yes, So, hide?’ pen through his that. drew next item was the just insurance, $1,500. I don’t remember what we said but I that; about knоw-1 ‘You said, are not interested pen through in that insurance.’ And he drew that. Yol. *10 y. Laughlin.
LaugMin I IT. L. advanced D. next item was cash ‘Well/ I have made. I ‘I advancements can’t tell what said, upon keep depended yon kept to have I have books. money I 'hád advanced tell me what the yon. and books to ’ paper me the out. ITe that handed we threw So Chicago shape. it over to and turned that I took Company, and Brake Beam the American cashier of handwriting.” figures in her foot here are those at the dated letter Defendant admitted a February statement referred to said he 5, which 1898, and items as follows: therein, ignores Sept. my ’89, of' check
“This statement Aug. ’85, note Johnson B. $60, $350 J. , moneys may you have from the received all such and your not included in statement. warehouse, ignores County lands, “It which also St'. Glair Money you, profit those at aw shoio a believe will they ultimately unless are. It but none also for, are by you ignores Co., from Carter & the collection made trip All of are ‘not counted.’ Va., W. your the end of statement. to and then at referred erased signed herewith this, “In all I have addition to you stipulation sent me for an arbitration return to provides that it I notice that before Robt. L. McLaran. the first of March, ‘not later than shall make award you not mean. un- I ask no 1898.’ This I do assume compels my delay, me business to be reasonable probability rest of this York all month, New prodded way you although a that I have me you you, upon I сannot believe insist never have would everything delay dropping my and without enter else, controversy, regardless upon unfortunate a trial of this expect I If in I am shall mistaken, to me. this of results you me.” advise to Nothing agreement of this arbitrate. It
came largely request put delayed at defend- off efforts of to arbitrate made were similar ant, years before. for several SUPREME COURT OP MISSOURI,
Defendant admitted he sold River. Farm Sac 1890 to Rannels and therefor. Edward received He admitted that he sold a testified he had never stick of timber oft of the River Farm. He denied large quantity sold a named of timber to man a Boots. Did not filed suit remember September J. T. Boots, returnable to the Term, damage trespass claiming land. Did said attaching remember nor of Boots’s saw-mill boat, giving forthcoming Boots that he obtained bond, judgment for $1,000 in that that on the 17th case, *11 day acknowledged payment thereof June, 1889, he through open attorney his Did not know two court. against other timber suits for- $1,000 each Boots taken any money off of the land. Never from received Boots for lumber or timber. Those matters were at- all ' attorney. tended to his “I remember the final out- got through come, after we with transaction. whole I was in debt $185, and Lucas wrote for the John to me money, it.” and I sent
By agreement, transcript judgment read against in favor of defendant Boots for timber taken off Sac River Farm, as follows: “March 29,1885, $1,000, attorney.” satisfied June 17,1889, defendant’s copies Plaintiff also intrоduced in evidence official of four defendant; deeds made one in 1883 to James Kollemberg, Henry W. consideration $700; one in 1884 to Fitch, consideration $300; one in 1886 to Abnot, James (in place $1,700 consideration another this record, $700); July is stated to one consideration dated Morgan 1895, to Cleveland, W. consideration $1,300. conveyed These deeds lands which were of the Mone- gaw Springs Property. The evidence as sales Laughlin’s Monegaw Springs Addition to in- too any probative definite to he of value. denied Plaintiff money that he any any ever received sales of property Monegaw Springs, anything or had to do with ' making any such sales. . Yol. any denied that Rannels
Plaintiff ever claim also against Rannels ever or that him, transferred claim against him to defendant.
Plaintiff’s E. W. testified: That witness, Rannels, Irrigation invested $3,500 Ditch, Montezuma bought and in 1889 acres River Farm from defendant for which he to him his over turned interest gave the Montezuma Ditch his note for paid. against $5,000; which he That he had no claim plaintiff for my so invested. “I into it went eyes open.”
In one of defendant’s counterclaims, on sued against plaintiff assigned as a claim him by said Rannels. given.
No instructions were or asked taking After the court advisement, case under equity on law and found for the defendant both the- against petition counts the defendant on all except counterclaims which it found 3rd, judgment rendered for the defendant and plaintiff in sum of $264. unsuccessfully moving trial, for new
After appealed to this court. *12 the by count the first raised
I. The issues was laсhes law. triable at While thereto were answer was equitable relief pleaded answer, the affirmative a law count prayed the first Therefore, for. review equity, cannot and we not a suit suit, Appellate practice. any sub- there But, de novo. the facts finding court, justify the lower evidence to stantial given, affirm must having we or been asked no instructions 573.] 275Mo. Rowland, [Koehler its action. carefully and the evidence examined have
II. We finding interfere can cannot see how we court, It to the first count. court circuit OF COURT MISSOURI, SUPREME LaugMin. v. pass upon jury, weight, sitting ac- Trial curacy ~ufficieney testimony Findings. of the of the sustain and the court found cause, against province doing'. him, acted within its so against plaintiff’s appeal must We rule on first count. judg- For the same cannot reason, we disturb against plaintiff ment on counterclaim of the 3rd defend- ant. petition:
III. The count of the This second equity, count must we consider the evidence de novo. (a). Straight Company As to the Creek Coal stock conifieting the evidence was all oral and was so Equity. finding we cannot disturb the of the lower court concerning that item. (cid:127) (b). As Sac Farm Springs Property: We set out have the salient features testimony relating this in our statement place years of facts. The transactions took before the suit and, was tried, we the evidence think, Oral and parties given at the trial shows that Documentary Evidence. memory, unnaturally the defendant's that account, was somewhat at fault as to important particular some regard details. Therefore, should be by statement in parties. by It is admitted the defendant that, or received from Exhibit “6,” dated February'9, following end of which 1892,-at by or items claims made defend- ant:
“Interest River Farm (cid:127)Cash L. on advanced J. 350.00 farm.$ Wood sold
Collected L. J. from Carter &Co. 78.00 Insurance. 1500.00 ” Cash H. advanced D. L. through Defendant testifies that lines were drawn *13 by items these the under the circumstances and Vol. given testimony, by we wMch in Ms the reason him fully Plaintiff statement
have our case. set out through any these drew lines denies that he says the lines drawn Implied Trust. items, through at with them the or, least, defendant, n plaintiff knowledge, out after statement delivered having six some to statement defendant. after But, possession, yеars in Ms the defendant or seven February plaintiff, used the fol 5, letter of 1898, language lowing reference to said statement: Sept. ignores my ’89, check of statement “.This Aug. ’85, note for the J. B. $60; $350 Johnson you may moneys from the received have and all such your statement. not included warehouse, County ignores I lands, Clair which “It St. also Monegaw profit you, if at those are believe will show a they ultimately paid It none are. also but unless for, you ignores & Co., Carter collection ’ trip All of which not counted. Va.,‘ are re- and the W. ’’ your the end of erased statement. to and then ferred at language, to when or whom without reference This through the items con mentioned, the lines were drawn plaintiff’s claim an interest in tains no denial aсknowledges clearly indicates and Farm, River but Sac part therein as Clair St. is interested County River Farm alone men lands, because Sac letter refers, statement to tioned acknowledges Monegaw plaintiff’s interest also Springs Property, said lands. Also, as another de County says, that he believes Clair fendant St. lands profit Springs if those at will show they ultimately none unless are. De for, are thus written fendant have could had interest Farm, never Monegaw Springs and defendant had himself, handled nothing nothing about it to do with know ex presented by plaintiff, cept sign deeds when as testified by plaintiff lan defendant’s at trial. We think *14 COURT OE MISSOURI, SUPREME Laughlin.
LaugMin v. guage 'writing by letter is this corroboration de plaintiff’s testimony fendant of the truth of that he was in the interested River Farm, Sac as as well Springs, knowledge and had no of the details as to how disposed property either of or handled had been de language fendant. The knowledges impliedly this also letter ac existing trusteeship obligation an or to ac part count on plaintiff defendant’s with reference to County said Clair lands, St. which included both Monegaw Springs Property. Farm and obligation concerning or trust both tracts arose out of agreement one and the same and transaction. There is no fully hint in the that defendant letter, does not intend to obligation discharge with reference to may said lands, whatever it be. Indeed, defendant teti- trial, that, discussing filed at the the state Limitations. February, 1892, year, plaintiff ment of in that claimed an Sac River Farm, defend interest ant told him that it was a disastrous failure, and he nothing', money but lost on it, which, defendant says, plaintiff acquiesced said knew and in such state ment. This conversation is denied but if place, deny took defendant’s failure to that originally an interest in said ón farm, that occasion, in was, an admission effect, that he had claim some or interest thereto, which defendant should account but for the fact of its a disastrous failure. The evi dence shows it was not a but that failure, defendant sold only it for $5,000, $2,500 therefor. controversy that the We hold truth of this as to the pieces property, manner both Sac River Farm, Monegaw Springs (which defendant admits plaintiff), acquired held for held defend- plaintiff. ant, is with We have no reasonable doubt of it.
Under .such circumstances, defendant was trus- question. tee for there be can no The Statute of requiring express Frauds trusts in land to' be Yol. v. prevent application. settled, It is well
has charge person equity trustee who fraud courts of will buys or trustee’s another at execution agreement equity parol owner of under sale redemption for such owner or to hold it in whole or and will enforce such conditions, trader certain terms and implied agreement [Richard- trust for owner. Leahey Champion, 123 Mo. 538; Witte, v. son 143 Mo. cited.] *15 and cases 207,
Consequently, trustee that we hold defendant was proceeds of sale of the one-half the as to proceeds the of sale of River Farm the all Februаry Property. Springs letter of Defendant’s 5, that defendant never before time shows 1898, fiduciary recognized, repudiated, then relation but still expresses property. letter Said under held which repudiate Although relationship. such intention to express trust, because was not a technical not trust required by writing, not an involun statute, was our tary consent and convention of created trust, parties already which circipnstances, equitable such Statute owner. Under run until does not commence to the trust of Limitations knowledge que repudiated of the cestui trust, express trust. the case technical [25 same of a Cyc. cited; Kan. cases Hunnicutt v. 84 Oren, 1159, 589-93.] Neb. Hanson, Hanson v. 78 460; any ever therefore, if there was re hold, We knowledge pudiation trust defendant’s February n letter plaintiff, not after it was until 5, 1898 . year& It that in after date is admitted two February the defendant removed 5,1898, said letter permanently never returned to Mis- from the State and souri to After Limita- time, reside. Statute [Sec. to run circumstances. tions ceased under McMurray McMurray, 526; v. 180 Mo. 1909; R. S. Orr Mo. 212.] Wilmarth, SUPREME COURT OF MISSOURI,
Laughlin v. Plaintiff’s connt is, second therefore, barred the Statute of Limitations.
Nor can we allow the defense of laches. The defend~ ant was a trustee for the and on numerous oc- casions, during long years elapsed which between the trusteeship bringing suit, creation of his and the of this requested yerbally and in Laches. accounting, that defendant make him an and for years get arbitrate, tried to which defеndant delayed postponed, n~cessari1y wilfully, but be- perhaps busy cause he was with other matters or out of procrastination, largely possesses a habit of some lawyers-as well as others-and is of a truth "the thief Besides, shows, of time." the evidence that while defend- legally ant was doi~iiciled in this State until permanently State, much, he removed from the he was time, personally not most of the out of the State year So, about the relationship 1888 until this suit was filed. the close friendship long which existed so between naturally stay these brothers would the hand of either to unsheath the sword of the law the other. We can *16 bring- attribute no fault nor laches to the for not ing his suit before he did. - Consequently, responsible hold that we defеndant is plaintiff.for proceeds to the one-half of the of sale he re- ceived from the Sac River with interest Farm, at the rate per per pro- of cent annum six since he received such money ; also, ceeds for one-half of the insurance he re- building by from ceived of a loss on said farm fire (less spent building barn), amount he with like in- since he terest, it. It is received admitted that defendant sold the Sac River Farm to Rannels in 1890 and received therefor; $5,000 defendant $1,500 received insur- building ance about 1890from the destruction of fire. But farm defendant out about of half building charged in sum a barn. So, defendant should be with balance due on $750 insurance received. It is also quite shown evidence that defendant sold an amount of timber off the Sac River Farm one but there Boots, Vol. Laugltlm.
LaugWin v. collecting* litigation it, much to have seems been a loss it all was the result of testified and defendant Nothing contrary. There is no evidence of $185. allowed for this. should he against the Farm
The account as plaintiff, interest, defendant and favor of may, follows: therefore, he stated as received $5,000 from To one-half of
1890, 2',500.00 land.$ sale of Rannels from n being interest To one-half of from 1890 above amount on the per per of six cent at the rate date, 4,500.00 annum..... balance To one-half of 1890, $750 375.00 received. amount insurance due for being interest of $1,350, one-half To insurance on above balance at from 1890 to the rate date per per 675.00 annum. six cent 8.050.00
Total.$ transcripts Springs: Monegaw of deeds toAs that defendant show introduced evidence Springs conveyed which land aggregate reciting deeds, four different place in one $4,000 record, consideration of July dated last deed in another—that receiving anything denies 1895. It is true, testimony making and denies for these lands February in his letter of but himself, thereof sales quoted, lands informs above yet Monegaw Springs which he had not sold expected money, to receive. received Being lands for it is the of these the trustee proceeds to account for the duty the defendant accounting for him It not sufficient thereof. the sale *17 nothing* nothing got and knows such say about to for, what these lands sold He must show sаles. truly stated in the deeds
consideration was if he did not receive the considera- he made thereto, OF MISSOURI, COURT SUPREME
Laughlin v. purchase why price tion or he must thereof, show through did not receive it no fault of wholly his. This has are failed to do. We satisfied plaintiff proceeds. never received such Under such circumstances, hold, defendant, we as such plaintiff aggregate trustee, is liable to the for the con- (the least) sideration mentioned in said deeds, $3,000, with interest from date of the last at deed, per per six amounting cent annum, until this date. Such interest, principal $4,500, added makes sum, plaintiff all due from on account Monegaw Springs. liability The total on account both Sac River Farm and Monegaw Springs, is with interest thereon at per per January the rate of six cent annum from 1,1921, paid. until reverse the decree
We, therefore, circuit court petition, on the count in the second and remand the case judgment court, to said with directions set aside its rendered, on up count heretofore said second enter judgment against thereon favor of $15,550 n , for the sum of with interest thereon defendant, per per day at the rate of cent annum the first six paid. January, until judgment heretofore rendered circuit pe- first count court of the third counterclaim the answer, and the is af- tition firmed. party pay that each order, further one-half of the
We in the case in as well total the Circuit costs Su- Ragland, preme Brown and GG., concur. Court. foregoing opinion by PER CURIAM:—The Small, opinion adopted as the court. C., Woodson, Iligbee, Walker, E. Blair and JJ., David concur; James J., Graves, J., Blair, dissent; T. Elder, J., G. sitting.