*1 1921. Yol.
Price v. Morrison. Appellants, v. ANDERSON, ALICE P. PRICE and MAE AMELIA MORRISON. Two, December 1921.
Division Between Grantor Valid as FRAUDULENT CONVEYANCE: 1. conveyance by his to Grantee. A made the owner of real estate property beyond placing ison, purpose the the for the reach judgment creditors, as between valid of his then wife and his is grantee, although grantor there- no actual the may passed grantee grantor. have from the to. the for Bought by Conveyance a father Father: to Son. Where —--: 2. coiivey son, bought grantor the his real estate and had creditors, judgment ac- the the father’s order defeat son any-secret quired simple title, regardless ar- the absolute fee reconvey rangements may father to made with his he have him. Extinguishment Trusteeship: -: Reinvestment: Devise: land, and Equitable own Title. a father his Where bought another tract hei caused vendor purpose placing convey son, lands be- it to his judgment yond cred- then and his of the. father’s wife the reach conveyances being itors, valuable considera- without both father, paid by will made thereafter the son to tion i his said father said real estate to which he devised son sisters, and main- to be held two “which in trust for death, twenty my by my years if he after shall father for tained my long long live, live then it is if not so should so but he my real estate shall all and desire that will twenty my equal parts or shares descend to sisters after my years, die; within a death of father if should at the or my my .period twenty years father and “whenever after death” 'of dispose or of the devisees sell interest best deems it to proceeds my -estate, and invest do so real he shall conveyances, property, personal such but other real estate for purchases him as trustee be made are to and investments equit- father, sisters,” and the my title vested sisters, real estate unless the two able title in purposes of reinvestment sold extinguished equitable not title was their of th'e sisters benefit by any by him, conveyance attempted death but made es- the said they in fee of owners became the absolute SUPREME COURT MISSOURI, OF notwithstanding twenty years attempted tate he had within the convey agreed subsequent it to a wife in consideration of her marry
ment to him. *2 Acceptance. will, duly probated, 4. -: -1—: -: Where a testator, devises real e'state for certain in sisters and accepts imposed upon by trusteeship the the trustee him its provisions, privies neither' he his can! assert thereafter nor ownership simple by claim of to the fee adverse title the held testator. - n : 5. Marriage. -: -: Consideration .In Where the legal estatel, testator was the owner1 title real the to con veyed by purpose defrauding to him his father his creditors, devised will to it his in trust far his sis fathelr ters, legal right give away the had trustee to it toor con vey subsequent agreemefnt it a to wife in her marry him. 6. CONVEYANCE BY TRUSTEE: Notice: Face of con- Deed. A deed veying sisters, real estate devised a for testator’s purports grantor ‘o,f to have been made the as trustee attempt- the testator’s shows on its face he was not ing convey property, charged it as his individual but grantee legal with notice title held was. grantor sisters, only as trustee for the and that author- convey purposes ized to sell and it for the in mentioned will. EQUITY: Appellate judgment appeal 7. Practice. On a in a from equity, (cid:127) Supreme suit in and 'examines record Court passes upon case, the merits of and renders decree law, accordance with the and will the trial facts direict divesting judgment render, what court the extent even vesting title real out defendant estatel n plaintiffs. Appeal from Circuit Hon. Peter Genevieve Court. Ste. Judge.
H. Huck, (with directions). Reversed AND remanded Hays ap- Spradling Burroug-h D. & Edward pellants. * conveyances
(1) from M. Morrison James Engleman H. wife and Edward and wife to 1921. Yol. shortly placed ex of record after tlioir attacking
Morrison were
respondent
such
is barred from
ecution,
conveyances
prove
con
that such
unless she can
fraud
veyances
Brinkerhoff
were made
her.
to defraud
M;o.
Dockery, 179
Davidson v.
Juden,
698, 723;
Reynolds
(2:) Sec.
21,'28.
Mo.
Faust,-179
respondent
required
she
the time
R.
S. 1919,
accepted
deeds from
trustee of
notice of the fact
estate
of Lawrence
take
deed
executed such
that James
Morrison had
capacity.
charged
representative
She
also
knowledge
estate
fact
with
formerly
controversy
to Lawrence
been
Mi.Morrison
latter devised to
Morrison and
appellants.
McAnally,
Mo.
Seibert v.
trust for
(3)
As
*3
518;
Wiltse,
Garrett v.
252.Mo.
505,
may accept
consideration of
trans
to what a trustee
a
very
question depends
power
fer
largely upon
the
sale,
under a
of
expressly
power.
of
Unless
the terms
the
ordinarily
But,
for cash.
he need not
sell
so directed
any
valuable consideration
he must exact a
event,
convey
gift
power
or
of the
has no
to make a
Eng.
merely
Am. &
nominal consideration. 28
it for a
'Railway,
Cyc.
Ency.
v.
67
Everette
360;
39
Law, 1002;
(4)
express power
exercised
sell can be
430.
An
Tex.
contemplated thereby.
purposes
where
only
Thus,
merely
paying
purpose
power
given
debts,
the
of
for
is
other; purpose
any
than
for
made
no
sale can be
valid
power discharge
a
debts. And
under
so,
of such
authority
estate, there is
benefit of the
sell for the
of the
estate.
is not for
benefit
a sale which
make
coming
of the
conveyance
terms
any
B]Ut
within the
object
grantor’s
promote
tending
authority
power
sale.
regarded
a
exercise of the
as valid
will be
Ency.
Eng.
Cornet,
v.
Am.
1000’;
Law,
Cornet
28
&
pur
respondent
(5)
not a
The
317.
298,
269 Mo.
controversy
valuable
for a
the real estate
-of
chaser
necessary
one
to constitute
“value”
consideration.
purchaser
be a
must
valuable
value
a
252
MISSOURI,
SUPREME COURT OF
distinguished
good
from
consideration. A
a
valuable con
money
something
sideration is
is
defined to be
or
n worth
money.
a
Love and
while sufficient as
affection,
parties,
consideration between
con
insufficient to
is
purchaser
Whybark,
stitute
a
'Strong
one
v.
value.
Oliver
(1)
M.
himself
Morrison was as between
appellants,
including
his
at all times
and
children,
until
day
equitable
the 21st
the real and
December, 1916,
dispute,
property in
had at that time
owner of the
and
right
respondent,
convey
he
it
this
if
the absolute
to
to
upon
(2)
he
such terms as
desired.
so,
saw fit
do
say
position,'
wrong
then
If
are
to our
we
we
as
first
253
Yol.
1921.
that
powers
as trustee acted -within
upon
Law-
son,
conferred
the will
his
him
respondent,
mating
rence
deeds
aside,
set
for that reason the
should not he
deeds’
hut that
of the trial court
affirmed."
should he
decree
(3)
uncontra-
The evidence
direct and
shows
clear,
respectable,
and disin-
evidence
honorable
dicted
from
real and
sources that J. M. Morrison was the
terested
property
that he
true owner of the
herein involved and
conveyed
property
title of it and of all his
had
for himself. He
to one of
as
his'sons,
Lawrence,
paid
possession
managed
the taxes
continued in
of it,
it,
paid,
money,
all acts
it
exercised
it,
for with
own
finally
ownership
Lawrence’s
over
had his son
it,
prepared
property
to him
hack
will so
as to devise
power
right
dispose
it
to him
as
with
accounting to
court therefor.
best
seemed
without
right
dispose
it
to
McMurray,
It
and he
a
was his
had
McMurray
180'
as to him seemed best.
v.
Byrd
Smith,
396;
Mo.
v.
1 Mo.
Stevenson v.
526;
Ward,
knowledge
(4)
had notice
disprove presumption.' 88 Mo. Harrison, Lenox v. language Boynton Mo. 687. 144 491; Miller, v. says, court will so it and this means what of the will give interpret instrument effect to the and will 182 Mo. Fueller, L. Assn. v. Louis & B. written. St. Cyc. v. Boyer Graven 348; Mo. 498; Allen, 153' Mo: Drumtra, 298; Walton Allen, (6) Notwithstanding under the instrument *5 254 MISSOURI, SUPREME COURT OF appellants spe- claim, will Lawrence Morrison, eificially gives power ¡Morrison to James M. absolute notwithstanding specifically sell and that same will re- cites that the said James Morrison shall not be ac- discharge countable' “to court for the execution appellants gone, trust,” still have in violation express of the they terms the will under which claim, equity ato hearing court of and that court, after all the testimony seeing witnesses, decreed deeds made ing. M. Morrison and bind- were valid adjudications agree convey- “All modem that a power disposal, ance confers an absolute creates grantee.” in a fee 152 Drumtra, Walton Mo. 506; Russell v. Mo. 84 82. A Eubanks, recital a deed payment of the consideration therein is named prima-facie paid. Ap- evidence that it was at the time pellants introduced evidence in this case to rebut presumption. McCartney v. Finnell, 451; Mo. 445, Corpus! Anderson Cole, Juris, 265. C. commenced in the BAILEY, This action ¡Mis- Cape County, Common Pleas Court of Girardeau January change souri, transferred County, to the venue Circuit Court of Ste. Genevieve Judge Missouri, where was tried before Huck. petition, plaintiffs In the first count of said claim be owners, tenants certain common,-of city Cape estate located in the therein, described Girardeau, Missouri, and seek to set aside and cancel deed, date, December made 21, 1916, as trustee of the estate of Law- conveying rence to the Morrison, deceased, defendant, the real estate therein described said first count of petition. The second count is similar to first, plaintiffs which the seek set cancel aside and a war- ranty made deed aforesaid, conveying on December defendant, 26, 1916, therein thirty Cape acres laud located in about Girardeau County, Missouri, and described said count. 29Í]
Yol. y. Morrison.
Price *6 alleges Each that the real estate described count property deceased, therein was the Cape County afore- testate in in G-irardeau who died alleges left Morrison said. Each count that said Lawrence duly probated Pleas a in the Common which will, was county, on December 23, Court of last-named said that of said said Lawrence the terms will plain- in trust for devised to James Morrison, said IM. in both counts of
tiffs the real estate described herein, petition; trusteeship in vested aforesaid, period of created Morrison, was a said James period equal twenty years, for a to the lifetime said or provided that the real that said will James Morrison; twenty-year estate period, either at the' aforesaid, end of the trust death at the termination equal M. Morrison, said should descend James parts plaintiffs M. Mor- that said herein; departed January, and that said rison life this thereby terminated; was all said trusteeship thereupon descended covered said equal parts; plaintiffs, in that the in these and vested herein the wife of said M. Morri- defendant had son at the time of his been married death, year; prior that defendant’s name, him about one marriage, al- Green. counts was Amelia Bioth said lege aforesaid, that said James M. conspiracy to into defraud this defendant, entered ownership plaintiffs, deprive them of these whereby real said said promised execute to said de- to, did,
such trustee, respective warranty of date Decem- deeds, fendant the 1916 n mentioned, heretofore December ber standing against subject then to the encumbrances the first count that the mentioned in estate; deed expressed while $1200, consideration of contains the designated $800; other deed is consideration duly warranty recorded deeds was that each of said Cape County counts in 1917. Both aforesaid, Girardeau allege in said deeds mentioned OF SUPREME COURT MISSOURI, paid; fictitious and never that no real consideration
passed plaintiffs; to said trustee for the benefit these warranty that at the time of the execution of said deeds, said Morrison, as trustee under the terms of his trustee- ship, legal authority to make either of said deeds, petition etc. Each prayer, count concludes with a court is asked cancel deeds; acquired thereby, to divest said defendant title plaintiffs, subject and to vest the same in these such ag¡ainst encumbrances as rested said real estate at the conveyances. time of said General relief is also asked petition. in each count of
The petition, answer, amended as to each count of admits that the time of the death of M. said James Morrison he the was husband defendant; that de- period fendant been married to him for a of about year; prior marriage one that defendant’s to her name, M. James was Green; Amelia that saifl the said M. Morrison in month died .the of Jan- uary, 1918; that on December 21, said Morrison warranty executed and delivered to defendant deed petition; in described the first count of the that on Decem- ber 26,1916, said Morrison executed de- and delivered to fendant the deed in described the second count petition. answer contains, said Said after the above general allegations admissions, denial of all the in both petition. of the counts petition
For further answer both of the counts provi- is averred that said given power sions of will, said to sell or dis- pose giving of the real estate aforesaid, without performance imposed bond for the in him, accounting and was further relieved from to the court for the execution of said trust. It further averred that if James M. Morrison has not accounted said plaintiffs property they petition, in described any rights must look to his estate for the assertion they may premises. have Yol. TEEM,
' each, Jam,es
Said answer, as to that states said count, during M. Morrison, times; his lifetime, three married that first his Ida wife, December Grushon, died about marriage following that of said children Maggie Harry were born: Lawrence, Alma Mae, P., August, Fred; about 1903, he as his sec- married, ond Lona wife, Brannock; relations domestic between said James M. Morrison and his wife second very unpleasant; during were “that about at, years 1906 and the said Morrison was harassed said second wife his domestic life and obtaining instituting was judgments against creditors harassed suits and on or
him, about did, day July, 2nd 1907, make, execute and deliver to his quitclaim deeds to of his son, all Cape property County, Missouri, situated Girardeau elsewhere; that said .James property to said not an son, absolute Lawrence, conveyance, himself, but trust for and the con- veyance purpose depriving for the sole made his said second with whom so wife, his relations were unpleasant, realizing 'and his creditors from on or out property.” of his alleges convey- further answer after said that,
ance M. Morrison Lawrence, James. continued occupy the first count of described *8 petition executing his after homestead, continued, and ownership Lawrence, said deed to exercise acts of peti- property in over the both counts described year M. Morrison that about the said James 1913, tion; controversy, in make the will his Lawrence, son, had which disposition right gave said the of of to-his father agree- property, of defendant etc.; that in consideration marry ing for other valu- M. Morrison, and said James the executed delivered to her and considerations, able sought to cancelled in be December, 1916, deeds, two dated arrangement, pursuant petition; said that in the to- and lived married Morrison were and said defendant in gether the first count of described on the 291 Mo—17 MISSOURI, OF SUPREME COURT
Pries v. Morrison. in petition, M. Morrison of until the death said first January, propierty in the described that the against petition encumbrance had a count of the $1200 December execution of deed on at the time of the said 1916. 21, reply general con- new matter denial of is alleges, defendant in answer. It
tained above also said that deeds, she received notice, when said terms under the M. held said real estate Morrison aforesaid, of the Lawrence will, Morrison equitable con- that said that interest therein; he had no of veyances for to-defendant were not made benefit plaintiffs, solely of said James these for the benefit but duty as trustee. Said in of his Morrison, and violation by reply alleges reason of defendant, further that estopped claiming any in interest facts is aforesaid, from property, said etc. trial below
It defendant at was admitted prior July thereto, on 2, 1907, James. in the real was the owner fee estate described petition, common source first count and that he is the defend title as real estate. It said was admitted July M. Morrison that on said James ant, quitclaim deed Lona executed a wife, his conveying estate said him the real petition, ex count described the first duly pressed was ; deed $800 acknowledged Re for record in the office and filed County, Cape in and Mis corder of Deeds Girardeau July recorded Book souri, 1907., was page bjr that on It was admitted defendant Janu ary a decree of 8,1908, said obtained in the circuit wife, divorce from Lona Morrison, county. court of the defend above It was admitted prior Edward PI. thereto, ant that on 1,1907, October Engleman de estate owner fee the real petition, scribed the second count and that he It common source of title as estate. to said admitted on October Edward' 1, 1907, defendant *9 Vol. Eiigleman
H. de real wife estate, scribed in the second count, deed, expressed Lawrence consideration of Morrison, duly acknowledged prop $1200,which said deed erty Cape filed for record in County Girardeau aforesaid, pag’e on October and recorded in 5, 1908, Book 49, 468, of the Recorder’s It was admitted defend office. diejd ant on December 21, Cape County while a aforesaid; resident of Girardeau proven duty that he left will which and admitted probate Cape in the Court of Girardeau CommonPleas, December and that no letters administra applied during- tion were lifetime of said James January nor until after 18, 1918, one week his death. parts, without formal aforesaid, will reads
follows: my just payment
“Article First: I desire the of all expenses, and funeral are debts, small, -which few and my may soon after death as be. to.my father
“Article will and devise Second: I personal prop- all of erty, may money and choses wherever the same action my May Maggie be in trust for to-wit: found, sisters, two Maggie May P. Anderson, Mor- nee Alma my which trust is to be rison, held maintained .twenty years my so father shall after if he death, long long is if not live. But lie should so then it live my my desire real estate will and that all my parts equal shall after descend or sisters shares twenty my at the father should or death if years; period twenty years my die within a after death. further nay
“Article Three: It is desire- will and my depart if sister Alma P. this Morrison should life my living without issue or then will and decendants, part my desire that all estate to her devised my Maggie May will this shall descend and vest sister expiration if she be but at the this Anderson, her children their de- her shall descend to dead, share MISSOURI, *10 OF SUPREME COURT 260 Price v. Morrison. descent un- under the law of and
scendants distribution [Missouri. der of the of laws State my my It will and desire that “Article Four: is years, twenty if for James M. father, Morrison, trust long my property; so he should live after hold death, said long- said to but*if he should not live then he hold so is my property long he It trust so does live. is also my Mor will father, and desire that whenever rison, deems to the best interest of devisees to sell personal dispose my property or or dioses conveyances fitting- he make action, shall do so and purchasers in same, and that he transfers to proceeds or vest the from in real estate derived the same personal property, re-convey same and re-sell judgment may my or he deem sisters best conveyances, purchases and their but descendants, my are be him as trustee for investments to made legatees. or sisters my that this
“Article It and desire Five: is will probated as soon testament after last will and be shall my may my de- death as but it is further will and be, require my M. trustee, shall sire that no court my estate, who is also as executor named give performance require him to shall bond any required nor he to account to this that be trust, discharge nor execution said trust, court or required any in- to he to settlement court make be imposed by regard this last duties or actions will to-the and testament. my said executor
“I further authorize pri- my public property at or all and real estate sell conveyances of the Same without sale make vate being required procure order of from first an sale probate' report probate any any or court, or court, approval any so real estate or sale ask or executor. as such trustee sold my time “It will if that, and desire my judgment my be to the benefit of sis- it would father’s have advancement or some them, either of ters, Yol.
money them such the' fund, from will advance of them neither hut said advances to funds amounts, exceed-approximately interest'in said trust fund. their “Lawrence Morrison.” It admitted defendant Alma
Morrison was father of Maggie P. said James Price and Mae January a resident while died Cape County, Missouri. Girardeau Respondent in evidence two offered sought deeds dated December and December 26, *11 sufficiently de- have been herein, be cancelled which to < . scribed heretofore. plaintiffs, objection.of per- the was over Defendant, testi- examine a number of whose witnesses, mitted to paid for mony tended that M. Morrison to show James controversy, in second in real estate described part paid that Morrison count, Engleman; purchase price that Edward H. same Engleman property to Lawrence said was ¡M. keep Morrison, the instance of at reaching plain- same. creditors from Over the latter’s tending testimony objection, offered tiffs’ defendant paid" nothing for the Lawrence Morrison that show petition; that in the first count real estate described after the title said in Lawrence Morrison, continued estate was vested paid ownership the taxes it, acts of over to exercise property occupied described in thereon, objection plain- petition. Over count first general prove permitted was tiffs, defendant neighborhood, reputa,tionj in James M. Morri- supposed the real owner of to be was .son controversy. receipts
Appellants certain tax evidence offered controvery showing was real estate assessed paid on and that the taxes were to Lawrence trustee. Plaintiffs offered as same tending testimony that James Morrison, to show SUPREME COURT OF MISSOURI, deposited trustee of the estate of Lawrence Morrison, money against in the banks, checked the same as relating such trustee; he transacted other business, to said real trustee aforesaid.
Plaintiffs defendant witness, sworn as a to' and offered examine her with reference to said war- ranty deeds, and the Coun- same, etc. objected by plain- sel for defendant her examination ground incompetent on the that she tiffs, was an witness 'respondent’s under the etc. court law, The sustained objection testimony. Thereupon and excluded said coun- appellants sought they sel had the record show what defendant, elicit from to again etc. as a The court witness, incompetent. ruled that evidence was An ex- ception rulings. saved to above foregoing substantially pre covers all the facts in the sented The trial court took the case un record. der until advisement, October 1919, which date, found the issues favor of on both defendant, counts plaintiffs’ petition, judg dismissed bill, entered against ment them for1 etc. costs, Plaintiffs, time, due filed their motion for a trial, overruled, new appealed duly the cause them to this court. *12 appears
I. It from defendant’s answer, amended undisputed and from evidence that case, James conveyed M. the common source of Morrison, title, pe- real described estate in the first count of Fraudulent tition, son, July to his Lawrence on Conveyance. expressed 2, for the of purpose placing; $800, the intention with beyond said the reach of his second wife and judgment conveyance may his creditors. said While judgment expeditors,yet, have been void as to said as between Morrison and his son, said James Lawrence to the latter the absolute fee sim ple although title to said real actual considera passed may parties. [Gammage tion between have said (Mo.) 222 l. c. cited; v. S. W. cases Latham, 471-2, 263 Vol. v. Morrison. Price (Mo.) cases l. c. 886 and
Butte Inv. 201 S. W. Co. v. Bell, Derry (Mo.) Rowley Rowley, 155; l. c. W. cited; v. 197 S. 214 v. Bivert, v. 192-3-4; Mo. l. c. Creamer Fielder, 216 v. 187; 214 Davidson Mo. Dockery, Mo. White, Charles v. 696-7; Whitaker, l. c. Whitaker & Randall Mo. Van cited; l. c. Winkle 353, and cases Mo. McKee, 435.] cavil no room for The above authorities leave in re- State, as to the established law donbt, spect foregoing matter. to the may purposes case,
It be conceded for the paid his no consideration that Lawrence Morrison grantee quitclaim if the did Even father for said deed. re-convey secretly agree that he would father, with yet, the con- aforesaid, estate to the veyance real latter, .made to. creditors, aforesaid defraud was re-convey require equity not the son would court of property. bought undisputed Morrison II. It is pe- in the second count described the real estate Engleman October H. wife, from Edward tition, in- therefor, the deed 3907, and ¡M. made Morrison, stance of said James Voluntary Deed. gran- directly Lawrence to said judgment creditors to defeat the tee, order in the cited, Under authorities M. Morrison. acquired preceding proposition, Morrison Lawrence simple estate to the real described fee title absolute petition, regardless secret count the second may arrangement his father—if one have made with re-convey the real estate aforesaid. to him was made—to Sep- controversy TTL was executed The will time, 1913. At tember simple owner estate con- fee troversy, absolute in both counts
described up *13 petition, and remained such owner Extinguishment Equitable on December 21,1914. the time of his death, Title. provisions By the will terms and MISSOURI, SUPREME COURT OF' out, Morrison, heretofore set James M. at the death of testator, became vested with the ~titleto the real controversy, `plaintiffs, estate in as trustee for these equitable while the title to said real estate became vested by plaintiffs, subject the terms of said will in to the legal right trustee, estate, of said to sell said real under provisions will, of said in a manner authorized proceeds law, in o~rderto re-invest the thereof for the plaintiffs. [Dunbar Sims, benefit of these 283 Mo. Huntington Mega 356, 838; 222 S. W. Real Estate Co. v. ree, 301.] 280 Mo. 217 S. W. Unless the real estate Morrison, aforesaid was sold JamesMI. as trustee purposes aforesaid, for the of re-investment for the plaintiffs, equitable benefit of these property theii~ title to said extinguished, was not and on the death of said they became the absolute owners in controversy fee of all the real estate in here. shown, IV. As heretofore Lawrence death, the time of his was the owner in fee of the land de petition. scribed in both counts of the James M. Morri accepted trusteeship imposed upon son him provisions afdresaid, hence, of the will a~d Trusteeship: he, privies, neither nor his could thereafter Acceptance. ownership assert claim of in said real simple estate adverse to the fee title held Morrison therein at the time of his death. Said James knowledge with full of all the facts here mentioned, having accepted trusteeship tofore thereunder, legal right convey acted had no to sell and any part thereof, except good faith, said real purposes plaintiffs, of re-investment in behalf of Richmond, [Milan as heretofore stated. Bank v. (Mo.) 76-7, cited; Ry. S. W. Co., l. c. and cases Sebree v. (Mo.) cited; 212 S. W. l. c. and cases Lawson Cunningham, 150; 275 Mo. l. c. State ex rel. v. Citizens Bank, Mann, 274 Mo. l. c. 202 S. W. Hector v. 228.] *14 Vol. 265
Price v. Morrison. may passing -V. It be said in that James M. Morn- legal right, give away aforesaid, son had no as trustee convey or to the same to agree In Consideration defendant in consideration of her Marriage. marry ment to him. Cornet, In Cornet v. 269 Mo. l. c. the will in con troversy manage there directed the trustee "to such productive fund, and to make the same in such may advantageous." manner as he deem most safe and construing language, In the above we said: "It is not nor can it be said that this conferred other or dif power judgment investing ferent than to use his best approved by equity in such securities as are the rules of as investments for trust funds." prinoiple Trigg Trigg, The same is announced in v. (Mo.) Gibson,
192 S. W. Mo. l c. 507. l. c. and Gibson v. 239 case, We are satisfied from the evidence in this alleged controversy, sale of the real estate in from defendant, said J~mes M. Morrison as trustee to duty trustee, invalid; made in~violation of his and is warranty that both of the deeds from said trustee, defendant, should be set aside and can- celled. warranty sought
VI. The two deeds to be cancefled in this case show on their face that said James M. Mor attempting convey rison was not said reai estate to property. defendant as his individual On the contrary, purport Notice: both of said deeds to have Face of been executed said James M. Morrison as Deed. trustee of the estate of Lawrence de- dealing prop- ceased. The defendant with said trust erty charged legal with notice that title to said real estate was held said James M. ~Morrison as plaintiffs, trustee for the use and benefit of these only convey that he was authorized to sell and the same purposes of re-investment in their behalf.
266 SUPREME COURT MISSOURI, O'E. accordingly
We hold virtue defendant, deeds, maleficio, became a trustee ex holds controversy title to the real estate plaintiffs use and benefit com these as tenants mon. Phillips [Elliott v. Machine 546; 236 Co., Mo. Jackson, 240 Mo. l. l. c. 250 Mo. Goodman, Case v. c. Sipes, 114-5, S. l. c. 698;W. Case 217 S. 306;W. Hess E. W. & V. v. Grain Co., Co. *15 Mo. l. c. 196, S. l.W. c. 503.] proceeding equity,
VIL As is this re- we are quired pass upon to examine the merits record, and performing duty, case. In this we have not been able to reach the same conclusion as did the Conclusion. respect trial court in to either the facts rights parties the law under which the hereto respondent be should hold that determined. We purchaser, an neither innocent nor one value. accor&ingLy We reverse and this cause, remand with directions to the trial court to set aside its decree, plaintiffs, cancelling to enter a new decree favor of the two deeds from James M.
for the estate of Lawrence to the Morrison, deceased, part and as a defendant; of said divest decree, to defendant of the title to the real estate described petition, in both counts of vest the in these same plaintiffs as tenants in common. and Reeves, GO., White concur. foregoing opinion
PER CURIAM:-The of Railey, adopted opinion hereby C., is as the All the court. judges concur.