Sampson v. Mitchell

28 S.W. 768, 125 Mo. 217, 1894 Mo. LEXIS 382

• Court: Supreme Court of Missouri
• Decided: December 4, 1894
• Status: Published

Opinions

DIVISION ONE.

Black, P. J.

Richard Sampson, of Boone county, died testate in 1863. By his will he devised to his son John H. Sampson the two hundred and forty acres of land now in question and certain personal property in trust for the following purposes: For the sole use ‘ ‘of my daughter-in-law Jessie B. Sampson and the children of her body begotten by son Thomas during her cohabitation with him * * * freefrom the debts, liabilities and control of her said husband as though she were a femme sole.” It is provided further that Jessie B. Sampson “shall have the privilege of renting or leasing the whole or any portion of said estate, for such terms and upon such conditions, as to her shall seem best, or of continuing the occupancy of the same upon the sole condition that she shall properly support, maintain and educate the children of herself and my son Thomas during that time.;; Power is given to her to sell the products of the farm and live stock that may be in the hands of herself, or said trustee, or upon said farm; and it is made the duty of said trustee, upon her written request, to execute any needful bill of sale. The will provides further that the real estate, slaves and personal property, not disposed of under the trust, shall be kept together and appropriated to the use of the family during the lifetime of Jessie B. and her husband. Should Jessie B. die leaving her husband Thomas surviving it is made the duty of the trustee to pay to him during his lifetime the rents and profits of the land, or to permit him to occupy the premises for the maintenance and support of himself and children without rendering any account. The will provides further that upon the death of Jessie B. and her husband, Thomas, the title to the land shall at once vest in the children of said Thomas and Jessie.

Jessie B. Sampson and her husband, Thomas, and their seven children commenced this suit in November, 1891, making Porter J. Mitchell and the trustee, John H. Sampson, defendants. The petition sets out the will of Richard Sampson and avers that John H. Sampson accepted the trust; that plaintiffs are entitled to the use of the trust estate; that on the third of March, 1886, John H. Sampson conveyed the land to one Waugh in trust to secure $1,575, that Waugh sold the land under the terms of the trust deed and defendant Mitchell became the purchaser. It is further averred that the trustee had no power to mortgage the land, that Mitchell is in possession, and that the trustee refuses to put plaintiffs in possession or to take any steps to assert their rights to the rents. They pray that the deed of trust to Waugh and the deed to defendant be set aside; that the title be reinvested in the trustee; that a new trustee be appointed if necessary, and for possession.

The trustee filed no answer. Mitchell', in his answer, admits the will, the execution and delivery of the deed of trust and trustee’s deed and that he is in possession, but he denies the other averments of the petition. For a second and further defense, he pleads a judgment of the Boone county circuit court, rendered in his favor in February, 1891, in a cause wherein he was the plaintiff and the plaintiffs in this suit were defendants.

The evidence in this case discloses the following facts: While Jessie B. Sampson and her husband, Thomas W., were in possession of the land under the will they allowed the taxes and the interest and penalties' thereon to accumulate for the years 1872 to 1876 both inclusive. The collector obtained judgment against the trustee and beneficiaries, enforcing the tax lien. Thereupon and in April, 1876, John H. Sampson presented to the circuit court a petition, stating that he, as trustee under the will of Richard Sampson, owed the state the taxes before mentioned, that the land produced nothing over the support of the' beneficiaries, and that it was necessary to borrow money to pay the taxes, and asked leave to borrow money to pay them. The court on this petition directed the trustee to borrow money sufficient for such purpose and to secure the same by a mortgage or deed of trust. Pursuant to this order he borrowed $503.13, and secured the same by a deed of trust on the land, dated November 25, 1878. With the money thus raised he paid the taxes, interest and penalties thereon forthe years 1872, to and including, 1877.

The taxes were allowed to go unpaid for the years 1878, to and including 1885, when the trustee presented another like petition to the circuit court, and the court made an order directing the trustee to mortgage the land for a sum sufficient to pay the prior deed of trust and the accumulated taxes. Pursuant to this order, he executed a second deed of trust to Waugh, dated the third of March, 1886, to secure the sum of $1,575, borrowed of Wm. McClure. With the money thus obtained he paid the first deed of trust and also the subsequent taxes.

The orders to borrow money on the land were both made on the ex parte petition of the trustee, John H. Sampson. None of the beneficiaries were before the court. He testified that Jessie B. and her husband requested him to procure the orders, and two or three of the children who were of age requested him to obtain the second order. The other children were then minors, and all the children were minors when the first order was procured.

The land was sold under the last deed of trust, and the defendant Mitchell become the purchaser. Thereupon Mitchell commenced a suit in ejectment against all of the persons who are plaintiffs in this case. Mitchell obtained possession under the judgment in his favor in that ejectment suit.

On this evidence and that hereafter mentioned, the trial court gave judgment for the plaintiffs, setting aside the deed of trust to Waugh and his deed to the defendant and for possession.

1. The first question is whether the two orders of the Boone county circuit court, entered on the ex parte petition of the testamentary trustee, directing him to incumber the land to raise money to pay the taxes, are valid or absolutely void. The claim of the plaintiffs is that these orders are void because the beneficiaries were not parties to those proceedings.

It is to be observed at the outset that the testamentary trustee had no power under the will to incumber the land, so that the power, if any he had, depends wholly upon the orders of the circuit court. To uphold these orders the defendant has cited us to a number of cases.

The principal question considered in the cases of Clarke v. Van Surlay, 15 Wend. 436, and Cochran v. Van Surlay, 20 Wend. 365, was as to the validity of certain private acts of the legislature, authorizing the sale of land which had been devised to trustees, for the purpose of paying the rents, issues and profits to one Clarke during his life, and to convey the land to his issue at his death. The acts were upheld. The power of the chancellor under these acts was also considered and it was also held that any error committed by him could not affect the title of a bona fide purchaser in an action o£ ejectment. In one of them it is said to be a settled principle that whenever property of infants consists of real or personal estate, the legal title to which is in trustees, the chancellor, as the general guardian and protector of all infants, may authorize such a disposition thereof as he may deem best in the exercise of a sound discretion. But we find nothing in these cases bearing upon the question of parties to a proceeding for the sale of such property.

It was held in Anderson v. Mather, 44 N. Y. 249, that a court of chancery has power to sell the estates of infants, of an equitable character, independent of any statute provision. The question in that case, which was an action of ejectment, related solely to the validity of the sale of the interest of a minor. The case shows that the court of chancery appointed a guardian for the minor in the very proceeding which resulted in the order of sale. That case is, therefore, not in point here. The same may be said of Pitcher v. Carter, 4 Sand. Ch. 1; for there the petition for leave to mortgage the property was presented by the trustee in his own behalf, and in behalf of the three infants as their next friend, and by the owner of the life estate.

It will be readily seen that these cases do not furnish any aid in the solution of the question now in hand.

It was observed by this court in Hayden’s Executors v. Marmaduke, 19 Mo. 403, that a trustee, placed in circumstances in which he may have reasonable doubt as to the proper disposition of the funds in his hands, has the right to apply to a court of equity for directions, making the persons interested parties to the proceeding. It seems to be the general and well settled rule that in such cases all parties in interest must be brought before the court. Mitford & Tyler’s Pleadings and Practice in Equity, p. 227; Lomerson v. Vroom, 42 N. J. Eq. 290; Gordon v. Green, 113 Mass. 259.

Says Perry: “If no power of sale is conferred upon the trustee, courts of equity, upon cause shown, may decree a sale. “In such case all parties in interest should have notice, and parties not sui peris should have guardians ad litem appointed.” Citing Bush v. Bush, 2 Duvall, 269; 2 Perry on Trusts [4 Ed], sec. 764. And it was said in Meddis v. Bull’s Adm’r, 18 S. W. Rep. 6: “The chancellor having sold this realty, and the parties in interest being before the court, the purchaser, Meddis, acquires a good title.”

In Moseley v. Hankinson, 22 S. C. 323, real property had been settled on a married woman “for her sole and separate use for life, and on her death, on her issue then living.” The trustee and the married woman and her husband joined in an ex parte petition to a court of equity, praying that the trustee be authorized to sell the land and reinvest in other property: The court made the order, and the land was sold pursuant thereto. There were five children living at the time of filing the petition. Thereafter the children-, or at least some of them, brought suit to recover possession of the land sold. It was held that the children were contingent, and not vested, remaindermen. It was further held, after a review of the authorities, that, as the ¡children were in esse and within the jurisdiction of the court, they should have been made parties to the proceeding for the sale of the land. Says the court: “It follows, therefore, that the rights of these contingent remaindermen are not barred, nor are those of the unborn contingent remaindermen; for, as it was practicable to have made some of the class parties who could have represented the interests of those who could not be made parties, and this was not done, there was no one before the court to represent the interests of. the contingent remaindermen when there could have been; and as the exception to the general rule, by which it is allowable to proceed without making contingent remaindermen who are not in esse parties, seems to be based wholly upon considerations of necessity, this case does not fall within the exception, and hence the rights of none of the contingent remaindermen are barred.” It was contended there, as it is here, that, as the fee was in the trustee and he was before the court, he could represent the interests of the remaindermen. But, after a review of the authorities in that state ,it was said: “The very object of applying to the court is to obtain authority for disposing of the interests of others, and those really entitled to such interests must, if practicable, be made parties to any proceeding by which it is proposed to dispose of their interests.” That case was approved and affirmed in the later case of Covar v. Cantelou, 25 S. C. 35.

The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit should be made parties; and in cases of trust the general rule is that the beneficiaries in the trust are necessary parties. Story’s Eq. Plead., sec. 207. There are several exceptions to this rule, one of them being that the trustee may sue to recover the trust property without joining the beneficiaries. After an examination of the textbooks and all the authorities to which we have been cited and many others, we can find no authority which brings this case, within any recognized exception to the general rule. It is to be observed that the testamentary trustee had no power under the will to incumber the trust estate. A court of equity alone could give him that authority after a hearing of all parties in interest. These children and the adult beneficiaries were all within the jurisdiction of the court, and should have been made parties to the proceeding in which leave was given to incumber the land. As they were not brought before the court they are not bound by the orders therein made. The orders to incumber the land are, as to the beneficiaries in the trust, absolutely void — void, even in a collateral proceeding.

Our statute, (section 1991, Revised Statutes, 1889,) declares that a trustee of an express trust may sue in his own name without joining the person for whose benefit the suit is prosecuted. This is but a legislative assertion of an established exception to the general rule before mentioned, and it has no application to a case like the one'in hand, where the object of the suit is to give the trustee powers not conferred upon him by the instrument creating the trust. Had the circuit court caused the infant remaindermen to be brought before it when the application for the first order was made and appointed as their guardian ad litem some competent adviser, it can not be doubted that the court would have seen that the taxes should have been paid by the life tenant, and the trustee would have been informed that it was his duty to see that they were paid by her. The trustee in the will says the family consumed all the products of the farm so that he had nothing in his hands and we believe all he says on this subject. Had the income from the farm been four or five times what it was, the result at the end of each year would have been the same no doubt. The testator foresaw all this and undertook to provide for it by appointing a trustee to protect and preserve the corpus of the property, and this trust ought not to be destroyed by ex parte orders. The orders of the circuit court directing the trustee to incumber the property are, we repeat, void on the face of.them.

2. The next question is whether the judgment in the prior suit of ejectment brought by the defendant Mitchell against the plaintiffs here constitutes a bar to this suit. The judgment in that case was, as has been said, in favor of the plaintiff there, the defendant here. It is well settled law in this state that a judgment in ejectment is no bar to a second suit between the same parties for the same property, and this is true, whether the titles and defenses in both actions be the same or not. Kimmel v. Benna, 70 Mo. 52; St. Louis v. Lumber Co., 98 Mo. 614, and cases cited. But it is insisted by the defendant that an equitable defense was interposed by these plaintiffs in the prior ejectment suit, that such defense was determined adversely to them, and that the judgment in that suit is, therefore, a bar here. Under our code, the defendant in an ejectment suit may set up an equitable defense, and in many cases he may set it up either as a defense simply, or he may set it up with a prayer for affirmative relief. Harris v. Vinyard, 42 Mo. 568; Seiberling, Miller & Co. v. Tipton, 113 Mo. 381. If the defendant sets up an equitable defense and there is a trial, and a judgment on it adverse to him, the judgment is final and concluí sive, unless reversed on appeal or writ of error. Such judgment may be pleaded in bar in a subsequent suit, between the same parties concerning the same title. Chouteau v. Gibson, 76 Mo. 38; Preston v. Rickets, 91 Mo. 320; St. Louis v. Lumber Co., 98 Mo. 615. But it does not follow that the defense is an equitable one and the judgment, therefore, final simply because the defendant sees fit to set out his defense specially. Hart v. Steedman, 98 Mo. 452. To constitute an equitable defense, the answer must state facts which bring the defense under some head of equitable cognizance. To hold otherwise is to overrule that line of cases wherein it is held by this court that a judgment in one ejectment suit is no bar to another like suit.

It is, therefore, essential to examine the answer filed by Jessie B. Sampson and her children in the prior ejectment suit. In that answer they deny that plaintiff was entitled to the possession of the premises; admit that they were in possession, but deny that they unlawfully withhold the possession from the plaintiff. They aver that Richard Sampson died testate seized of the land, and then set out a copy of the will, and conclude with the statement that they are in possession of the land as they have a right to be, and ask judgment that they go hence with their costs. There is not a' word said in the answer about the deed of trust from the testamentary trustee to Waugh or from Waugh to Mitchell. It was admitted by the reply in that case that Richard Sampson died testate as alleged in the answer and that the will was correctly set out. There, as here, both parties claimed under the will, and the only question in that case concerning the title was as to the validity of the deed of trust from the testamentary trustee to Waugh, and on the pleadings in that case that was a pure question of law. It must follow that the judgment in that case is no bar to the prosecution of this one.

3. Although the deed of trust from the testamentary trustee to Waugh to secure the $1,575 must be held to be void for the reasons before stated, still it may be that the defendant Mitchell is entitled to unequitable lien against the estates of some, or possibly all, of the plaintiffs, as the deed of trust was given to raise money to pay taxes on the trust estate. Considerable time has been consumed in the investigation of this branch of the case, but at every turn the objection is made that the answer lays no foundation for-such relief. If the defendant intended to assert such an equitable lien; he should have framed his answer with that end in view. Sims v. Gray, 66 Mo. 613. He failed to set up any such claim in his' answer, and. we are, therefore, not at liberty to express an opinion upon this question. The answer sets Up, it is true, title under the deed of trust to Waugh, but it does not state that the deed of trust was given to raise money to pay taxes on the trust property, nor does it state that the money was used for that purpose. The defense, and the whole defense, is based on the theory of a perfect title in the defendant Mitchell. The judgment is affirmed.,

All concur, execept Barclay, J., who dissents.

IN BANC.