Peacock v. Nelson, 50 Mo. 256

Peacock v. Nelson

50 Mo. 256 | Mo. | 1872

Adams, Judge,

delivered the opinion of the court.

The amended petition, upon which this case was tried, substantially stated .the facts to be that the plaintiff’s testator, Larkin *260Maddox, in. 1865, conveyed in fee to the defendant some 3,000 acres of land situated in Jackson and Cass counties ; that although $11,500 is named in the deed as the consideration, there was, in fact, no consideration at all paid or agreed to be paid by the defendant, but the conveyance was made to the defendant merely for the purpose 'of enabling him to act as the testator’s agent in the sale of the lands, and that the express agreement between them was that he was to sell the lands and account to the testator for the proceeds ; that the defendant did sell all the lands except 450 acres, and realized a large amount of money; that on the 31st of August, 1865, the defendant had a settlement with the testator, and acknowledged upon such settlement that he had in his hands $19,410 of the proceeds of the sale of these lands.

The petition then alleges that, notwithstanding the agreement in relation to the sale of the lands, the defendant, since the death of the testator, denies that he made the agreement, and asserts that he purchased the lands absolutely and unconditionally. The petition then credits the defendant by several alleged payments on the amount so alleged to have been due upon settlement, leaving a balance of $16,630.96 for which the plaintiff as administrator asked judgment. The answer denies the material facts stated in the petition.

When the case was called for trial the defendant objected to a trial by jury, on the ground that it was a suit in chancery and not an action for the -recovery of money only; but the court overruled the objection, and the defendant “excepted. The case was then submitted to a jury, and they found a verdict for the plaintiff for more than $17,000. The usual motion for a new trial was made and overruled, and the defendant has brought the case here by appeal.

Upon the trial of the case the defendant objected to all parol evidence of the alleged agreement between the defendant and the plaintiff’s testator, and of the terms on which the conveyance was made, and the learned counsel for defendant have made the point here and elaborated it with ability, that to suffer parol evidence to establish the alleged trust would be to overthrow the statute of *261frauds and perjuries, which requires trusts to be manifested and proved by a writing to be signed by the party creating the trust.

This is true in regard to express trusts, but the statute expressly excepts from its operation trusts arising by implication. If A., for valuable consideration paid by B., conveys land to him to be held in trust for C., and this trust is not expressed in the deed, it cannot be proved by parol evidence; and although created by parol, it must be manifested or proved by some writing to be signed by B. If no writing is produced, B., who paid for the land, will hold it discharged of the alleged parol trust. But suppose, in the instance named, A., without any consideration whatever moving from B., conveyed the land to him with the express agreement that he would declare a trust in favor of C., and after thus obtaining the land B. should refuse to declare the trust, would a court of equity suffer him to hold for his own use the land acquired by this kind of fraud ? Although the trust in favor of O. could not be carried into effect because there would be no writing to manifest it, still the land thus acquired by fraud would be held in trust for the grantor, A., and a court of equity would compel B. to convey it back to A. In this case B. would be protected against the express trust in favor of C. by the statute of frauds; but the implied trust in favor of A., growing out of the fraud, is excepted from the operation of the statute. If this were not the ease, the statute, which was intended to protect parties against fraud and perjury, would itself be an engine of fraud.

So, in the case under consideration, if it be true, as alleged, that the defendant obtained a conveyance of the testator’s lands S merely to act as agent for the sale of them, he cannot hold them ’ for himself; and when he attempts to do so, a trust grows up in - favor of the grantor by implication, which a court of equity will» compel him to execute. (See Tiff. & Bull. Trusts and Trustees, 22—23; Groves’ Heirs v. Fulsome et al., 16 Mo. 543.)

But this is not a suit to compel the execution of the alleged trust. The amended petition merely states the trust by way of inducement, and then declares upon a stated account and seeks to recover the balance of this stated account. Viewed in this light, *262it is an action at law for the recovery of money only, and was a proper case to be submitted to a jury.

The evidence tended to show that there had been a settlement, and one witness stated positively that the defendant told him that he had in his hands $16,000 of the money of Maddox, the testator, and Maddox had nothing to show for it. But the evidence was contradictory, both in regard to the trust and the stated account. There was, however, enough to support the verdict, and under the rulings so often made by this court we are not at liberty to disturb it.

Let the judgment be affirmed.

The other judges concur.