9 Mo. App. 128 | Mo. Ct. App. | 1880
delivered the opinion of the court.
Defendant, John C. Berberich, obtained a judgment before a justice of the peace against John F. Baier, in his individual capacity, and caused his execution to be levied on the counters, shelving, and boxes here in controversy. The same John F. Baier, as trustee for his wife, Louise, claimed the property in due form, under the act of 1855, whereupon defendant Berberich, with the other defendants as his sureties, gave the bond of indemnity which is here sued upon, and caused the property to be sold by the constable. The plaintiff’s testimony tended to show that on August 31, 1877, Louise Baier executed and delivered an instrument in the following terms : —
“ I, Louise Baier, wife of John F. Baier, being about to establish a grocery store at No.-Carondelet Avenue, in the city of St. Louis, with my own separate means and such credit as I may be able to procure, hereby appoint my brother, Louis Weber, my trustee, to purchase from time to time and hold for me as my sole and separate property, free from the debts, and in no wise subject to the control of my husband, John F. Baier, all such fixtures,'goods, wares, and merchandise as may lie necessary to carry on said grocery store, with power on my part to dispose of the gro_ ceries at retail in the ordinary course of business, and to direct the sale or mortgage of the store, stock, or fixtures at any time. I also reserve the power to remove my said trustee at pleasure, and to substitute another in his stead. My trustee is to incur no liability in the premises, except for the faithful performance of this trust.”
The trust was accepted by Weber, and the instrument was acknowledged by both parties.
Defendants argue that no trust was established as to the property in controversy by the instrument of August 31, 1877, because the property was not then owned by Louise Baier. The objection is of no force. If Mrs. Baier had placed money in the hands of her trustee for the purchase of the property, to be held under the trust, there can be no question that the property, when purchased, would become part of the trust estate. Why should the result be different when she placed her credit, instead of her money, in the trustee’s hands? The purchasing power of the one may be the same as that of the other. So far as the trustee And his authority are concerned, it can make no possible difference which of those elements was employed in the acquisition of the property.
The authorities cited by defendants in support of the proposition that a married woman cannot create a trust
There was sufficient evidence to sustain the finding of the jury on the questions of sale and delivery by the constable to Bauer & Bohle, and by Bauer & Bohle to Weber, trustee of Mrs. Baier. Some stress is laid on .the testimony which tended to show that the articles were, continuously from the time of the first execution sale until the trial of this cause, contained in a store-room in the possession of defendant Berberich. The actual possession of the-store-room was a matter of dispute between Berberich and Baier. But, in any case, the demand made by Berberich upon Bauer & Bohle, after the sale at which they bought,, that they at once remove the property purchased, sufficed to show his recognition of the fact that the sale to them was-complete, and that he, even if in possession of the storeroom, was a mere naked depository of the constable who-had levied.
It was in testimony that the property was sold by Bauer & Bohle to Louis Weber, trustee of Mrs. Baier, upom Mrs. Baier’s credit, and that an entry to that effect was made in the books of Bauer & Bohle, and that vendors
There is no reason why John F. Baier was not a competent witness in his own behalf. He is the beneficial plaintiff in this case, suing to enforce his legal rights as trustee of an express trust. In Paul v. Leavitt, cited for defendants, the husband and wife were joined as parties on the same footing. Here the wife is not a party at all. Her name appears only to aid the description of the beneficial plaintiff, and of the character in which he sues. The instructions given presented the case fairly to the jury. In those refused we do not find anything to which the defendants were entitled that is not substantially in the instructions which were given.
the judgment is affirmed.