278 Mo. 199 | Mo. | 1919
Certiorari to quash the record of the Kansas City Court of Appeals, because of conflict with certain decisions of this court. The opinion of the Kansas City Court of Appeals recites that plaintiffs, who are husband and wife, sued defendant for failure to perform an oral agreement made with them
In dealing with the contention that the action was one.in equity and should not have been submitted to a jury, the Kansas City Court of Appeals said: “While the petition alleged that when the defendant bought the property there was a resulting trust in favor of the plaintiffs, yet it further alleged that the property w.as conveyed by defendant to a stranger, putting it beyond the power of plaintiffs to get back the land. The petition is not. for money had and received by defendant from the stranger or the proceeds of the 'sale of the land by Cruzen to the stranger. -These are not asked for. Nor does the petition ask that á resulting trust be declared in favor of plaintiff in the property or its proceeds. While plaintiffs alleged a fiduciary and trust relation between themselves and the defendant, and on the trial proved the same and submitted the cause to the jury upon the assumption that they were required to prove such relation, we think that plaintiffs assumed an unnecessary burden and that it was not necessary to plead and prove any trust or fiduciary relation in this case. Taking the petition as a whole it is apparent that it is a cause of action for damages for breach of contract and as such is a suit at law. And this is true even if the damages asked were for the destruction of an equitable right. A man may have a legal remedy for the destruction of an equitable right.”
By failing to distinguish the facts and issues in the present record from those in the cases cited to support its ruling that this was a legal action, the Kansas City Court of Appeals fell into error and conflicted the decisions of this court cited by relator, as well as others,
In Mo. Real Estate Syn. v. Sims, 179 Mo. 679, 1. c. 684, the point in judgment was the liability of the defendant mortgagee for breach of an agreement Jo extend the time of foreclosure. This court held that for such breach the plaintiff was entitled to his action at law. That ruling in nowise contravenes the contention of relator in the present proceeding. The contract in that case was valid both at law and in equity and hence there was, on the facts disclosed, a concurrent remedy in both tribunals. /
The oral contract in the present case was saved from the bar of the Statute of Frauds only for the reason that a court of equity does not permit that defense when to do so would make it the instrument of perpetrating a fraud. [Archer on Eq. & Trust,'p. 248, sec. 176.] In order to prevent the undoing of the object of the Statute of Frauds by the interposition of the statute itself in behalf of a defendant who has violated an oral agreement whereunder he obtained title to plaintiff’s land, courts of equity impose a constructive trust upon the wrongdoer in favor of the person who would otherwise be defrauded. This at once takes the transaction out of the terms of the statute which have application only to the creation of express trusts in real estate (R. S. 1909, see. 2868) and have no application to constructive or resulting trusts. [R. S. 1909, sec. 2869.]
In the case under review it was indispensable to a recovery by plaintiffs that they should first' establish by proof the facts necessary to saddle a trust upon defendant in invitum under the equitable principle called into play by his fraudulent breach of his oral agreement. It was also essential that they should thereafter show the amount for which he thereby became accountable to them. If both these issues were found by the chancellor in favor of the plaintiffs, they would have been entitled to a decree against defendant. The first presents matters of exclfisive equitable cognizance,