127 Mo. 23 | Mo. | 1895
By general warranty deed, dated the twelfth day of January, 1885, John C. Kleekamp conveyed to his son-in-law, the defendant, B. Joseph Heitkamp, certain real estate in the city of St. Louis known as the “Autumn Street” property for the recited consideration of $12,000; and, by a like deed of the same date, conveyed to the said Heitkamp certain other real estate in said city, known as the “River Des Peres” prdperty, for the recited consideration of $5,000.
Afterward, on the nineteenth day of February, 1885, the Fourth National Bank of the city of St. Louis instituted suit, by attachment, upon two notes of the said Kleekamp, payable on demand, and protested for nonpayment on the seventeenth day of January, 1885, one dated May 3,1881, for $5,000, the other dated September 1,1882, for $15,000; in which suit the bank
After the execution of the deed from Kleekamp to Heitkamp, and after the institution of the suit by attachment by the bank against Kleekamp, to wit, on the sixth of March, 1885, the bank instituted another suit against Kleekamp and Heitkamp to set aside the said, deeds of the twelfth of January, on the ground that they were executed to defraud the creditors of the said Kleekamp; which suit was, on the seventh of November, 1885, dismissed, being the same day on which the execution was levied upon the real estate.
On the fourteenth of March, 1887, John C. Kleekamp died intestate, leaving surviving him three daughters, his only heirs at law — the plaintiff, Angelina Weiss, the defendant Lena H. Heitkamp, and Mary N. Kleekamp, who is not a party to this suit.
At the December term, 1891, of the circuit court of the city of St. Lonis, Angelina Weiss and her husband, Albert E. Weiss, instituted this suit against the said B. Joseph Heitkamp and his wife, charging in the petition, in substance, that, although the said John 0. Kleekamp did, “for purposes of his own,” convey said real estate
Wherefore, plaintiff prays that the said B. Joseph Heitkamp be declared to hold said premises in trust for the said three daughters of the said John 0. Kleekamp; that he be required to account for and pay over to plaintiffs their share of the rents and profits thereof, and “to convey to plaintiffs by good and sufficient conveyance their interest in the premises;” and for general relief.
The answer was, in substance, a general denial, except as to the record facts hereinbefore stated.
On the trial it was admitted that the estate of John 0. Kleekamp had been administered, and final settlement made in the probate court.
The plaintiffs, after making proof of the matters and facts of record as hereinbefore stated, introduced the defendant, B. Joseph Heitkamp, who, after testifying that the deeds of the twelfth of January were both delivered to him by John 0. Kleekamp on that day, and that there was no agreement between him and the said Kleekamp, either before or at the time of making said conveyance, in regard thereto, was asked many questions for the purpose of eliciting parol evidence proving or tending to prove that he gave no consideration for said conveyances, and that the money be paid for the conveyances from Percy had all been returned to him by Kleekamp between the twenty-third of May,
Thereupon, the plaintiffs took a nonsuit with leave, and, the court thereafter refusing to set the same aside upon proper motion, they bring the case here by appeal.
The contention of the plaintiffs is, that the court erred in refusing the evidence aforesaid, >on the ground 'that the same, if admitted, would have tended to prove a trust, resulting by implication of law, not obnoxious to the statute of frauds, -and enforceable in a court of equity, and was admissible for that purpose. And for support of their contention they rely principally upon a number of cases in this and other states, in which it is held that evidence is admissible to show that an absolute conveyance is a mortgage, and upon the case of Haigh v. Kaye, L. R. 7 Ch. App. 469, and Davies v. Otty, 35 Beav. 208.
In regard to these authorities we deem it necessary only to say that the mortgage cases are not in point; that the precise question here was not decided in the case of Haigh v. Kaye, supra, the trust in that case having been admitted; and, while the case of Davies v. Otty, 35 Beav., supra, does support the contention, it is not inline with the authorities upon this subject. Both of these cases were cited and pressed upon the consid
The plaintiffs complain that they were not permitted, in the face of the recited pecuniary consideration ■of the two warranty deeds of the twelfth of January, to show by parol evidence that those deeds were without consideration in fact, and that the-money consideration recited in, and in fact paid for, the Percy deed by the defendant, Heitkamp, was afterward returned to him by Kleekamp — from which facts, they contend, ■a trust would result by implication of law for the benefit of the grantor and his heirs. This contention -can not be maintained.
The doctrine maintained on this subject by the authorities, and applicable to the present contention, is thus stated by Mr. Pomeroy: “If the instrument is .a deed, no extrinsic evidence of the donor’s intention is admissible, unless fraud or mistake is alleged and ■shown. If, therefore, there is in fact no consideration, but the deed recites a pecuniary consideration, even merely nominal, as paid by the grantee, this statement raises a conclusive presumption of an intention that the grantee is to take the beneficial estate, and destroys the possibility of a trust resulting to the grantor, and no extrinsic evidence would be admitted to contradict the recital, and to show that there is in fact no consideration, except in a case of fraud or mistake.” 2 Pom. Eq. Juris. [2 Ed.], sec. 1036.
Of the equitable principle that the beneficial estate follows the consideration and attaches to the party from
Counsel for appellant concedes that this evidence was not admissible for the purpose of proving an express trust; and, applying the foregoing principles, we can not see how it could have been admissible for the purpose of proving a resulting trust. Yet, they seem to contend that it ought to have been admitted as tending to prove that the defendant accepted these deeds, without consideration, upon an express parol understanding that he would hold the title in trust for the grantor, and afterward convey the same to him, and that, having refused to do so, it would be a fraud upon the grantor to permit him to retain the title; and that out of this fraud, a court of equity ought to con•struct a trust ex maleficio, beyond the operation of the statute of frauds.
The logic of this contention is, that although a parol agreement creating a trust of lands is void by the statute of frauds, yet, if the trustee refuses to perform the agreement, the refusal is such a fraud as to take the agreement out of the statute of frauds. "We confess our inability to appreciate the force of such reasoning; and, although the master of the rolls, in Davies v. Otty, supra, seems to have been satisfied .with it, it
On the contrary, the true and generally accepted doctrine is thus stated in a recent work on equity: “Equity does not pretend to enforce verbal agreements in the face of the statute of frauds, and the person holding the legal title to real estate will not be decreed to be a constructive trustee, unless there is something more in the transaction than the mere violation of a parol agreement. Accordingly, the mere refusal of a trustee to execute an express trust, or the denial of the existence of the trust by him, does not make a case for raising a constructive trust. And where a conveyance in trust is made voluntarily, without solicitation or undue influence, and no fraud is shown prior to, or contemporaneous with, the execution of the deed, but consists in denying and repudiating the agreement to reconvey, it will not remove the case from the operation of the statute of frauds.” 1 Beach on Modern Equity Jurisprudence, sec. 234.
The judgment of the circuit court is affirmed.