| Mo. | Jul 5, 1919
This is a suit in equity to cancel and annul a certain deed of trust upon real estate. Trial was had in the Circuit Court of Buchanan County, Avhich resulted in favor of plaintiff, canceling the deed of trust. From that judgment James C. Growney, the cestui que trust, duly perfected an appeal.
The facts may be summarized as follows:
On January 14, 1907, Margaret E. Smith et al. conveyed by warranty deed, to the plaintiff, in trust for defendant John E. Maxwell, Sr., five acres of land in Buchanan County. The deed was made subject to a life estate in said property in favor of James Maxwell and Malinda Maxwell.
John E. Maxwell, Sr., named in said deed is the father, and James Maxwell and Malinda Maxwell (life tenants) were the grandfather and grandmother, of plaintiff, James E. Maxwell, named as trustees in said deed.
“Giving and granting to said trustee full power and authority to grant, bargain, sell, convey, pledge, mortgage or otherwise dispose of said property, to invest, re-invest or use' the 'money derived from any such sale, mortgage or pledge of said property or any income derived therefrom, for the use, benefit, support and maintenance of said John E. Maxwell, Sr.”
The above deed was duly recorded January 15, 1907.
The survivor of the two life tenants died in 1912, or 1913 and shortly thereafter John E. Maxwell Sr., “went out and took possession of the land.”
On March 23, 1914, John E. Maxwell, Sr., executed a deed of trust (being the deed of trust involved in the present suit) on said land, to secure the payment of a note of even date in the sum of $300 payable to defendant (appellant) James O. Growney.
On the following day said James O. Growney, acting as the attorney for John E. Maxwell, Sr., filed a suit in the Circuit Court of Buchanan County against the present plaintiff, the object and general nature of which was to have the legal title to said land vested in John E. Maxwell, Sr., or, failing in that, to have the trustee removed and a new trustee appointed. The case was tried, resulting in a judgment in favor of the trust and also in favor of the trustee, and no appeal was taken from said decree.
The evidence further tends to show that John E. Maxwell, Sr., moved “back to town” (St. Joseph, Mo.) in the fall of 1915, and that there was no one on the property at the time this suit was tried.
The plaintiff trustee testified that his father was without other means of support; that he (the son) had paid for the board and clothes of his father for the past several years and that in August, 1915, he as trustee decided to sell or mortgage the property for the purpose of raising the necessary money with which
Hence this suit to cancel the deed of trust, in order that the trustee might not be hampered in the execution of said trust.
I. It will be noticed that the respondent trustee is given full and complete, discretionary control over the trust estate. Under the express terms of that P°wer he may sell, mortgage or otherwise dispose of said property; may re-invest the proceeds thereof or use the money derived from any such sale or mortgage or the income thereof for the support of the named beneficiary. The trust created in said land was therefore an express active trust. [Freeman v. Maxwell, 262 Mo. l. c. 24; 3 Pomeroy’s Equity Jur. (3 Ed.) par. 991.]
The full and express powers conferred upon the trustee clearly excluded the idea that the beneficiary was given a like power of disposal. It therefore follows that the beneficiary did not have an alienable interest in the land which he attempted to incumber with the deed of trust. [Partridge v. Cavender 96 Mo. 452" court="Mo." date_filed="1888-10-15" href="https://app.midpage.ai/document/partridge-v-cavender-8009400?utm_source=webapp" opinion_id="8009400">96 Mo. 452; Higbee v. Brockenbrough, 191 S. W. Rep. 994.]
The above being true the deed of trust should be held as having no effect whatever upon' the title to this land nor the powers of the trustee thereover;
II. It is contended by appellant that plaintiff’s bill fails to state a cause of action in that it fails to allege that plaintiff had an interest in the land at the time suit was filed; citing, Shelton v. Horrell, 232 Mo. l. c. 369.
The petition after alleging that the land was conveyed to him in trust, etc., in 1997 proceeds: “That it
A mere reference to the foregoing portion of the bill is we think entirely sufficient to distinguish this case from the Shelton case, supra, and to show that plaintiff’s present interest in the subject-matter of the suit was sufficiently alleged.
III. We are also of the opinion that the trial court acting as a court of equity properly cancelled deed of trust in question.
Appellant in insisting to the contrary relies upon a line of cases of which Hannibal & St. J. Ey. Co. v. Nortoni, 154 Mo. 142" court="Mo." date_filed="1900-02-06" href="https://app.midpage.ai/document/hannibal--st-joseph-railroad-v-nortoni-8013450?utm_source=webapp" opinion_id="8013450">154 Mo. 142, 1. c. 149, is a fair type, In that case the court said: “The deed from Blake to defendants is clearly void on its face, because Blake had no title whatever to the land, which was apparent from the records of deeds in the Eecorder’s office of the county. Under such circumstances a court of equity will not lend its aid to remove what is claimed to be a cloud upon the title, because there is an adequate remedy at law, and it is only where the deed sought to be removed as a cloud does not appear to be void upon its face, but is void by reason of some other infirmity, and extrinsic evidence has to be resorted to for the purpose of establishing its invalidity, or the defect is of such a character as to render the deed invalid but can only be discovered by a mind of legal acuteness, that it will do so.”
The rule above announced will not protect appellant under the present situation. A “mind of legal acuteness” is generally, if not always, required to determine
Prom the uncontradicted evidence in the case at bar it clearly appears that the trustee is unable to carry out the power conferred upon him by the settlors of the trust, unless the suspicion cast upon the trustee’s title by the deed of trust in question is removed by the decree of a court of equity. There is no adequate legal remedy open to the trustee. His only adequate relief is in equity and we are of the opinion that the trial court did not go beyond its equitable powers in awarding relief under the circumstances now held in review. [Jewett v. Boardman, 181 Mo. 1" court="Mo." date_filed="1904-03-23" href="https://app.midpage.ai/document/state-ex-rel-wilson-v-miners-bank-8014988?utm_source=webapp" opinion_id="8014988">181 Mo. 1. c. 656-7; Pocoke v. Peterson, 256 Mo. 518-9.]
The judgment is affirmed.