Jones v. Shepley

Sherwood, J. — This proceeding has for its.object, the compelling of the trustee, Shepley, to pay over a fund in his hands to the plaintiff. The facts gathered from the record are these : The plaintiff and Julia Jones, his wife, were seized of a tract of land, as tenants, by entireties. The land was in litigation, and to secure their attorneys in their fees, and certain persons who had become sureties for them on an appeal bond, they conveyed the land in question, and also a judgment, which they had recovered in the St. Louis Court of Appeals in respect of the same, together with any other judgment, which might be entered in the same cause, on an appeal from this court to the Supreme Court, in trust, to the defendant, John R. Shepley. The deed provided that, in case Lewis Jones, and Julia Jones, his wife, should pay all costs and expenses, for which the sureties in their appeal bond might become liable, and should convey one-half the land, in case the land should be recovered in kind, and pay over one-half the money, which should be recovered in respect of the land, to their attorneys, in accordance with the contract subsisting between them and their attorneys, then the deed should be void; but, in case they should not do this, then the deed provided, in substance, that the trustee-should do it for them. And then come the clauses of the deed, which provide for the disposition of the remainder of the land, or of the money, and which alone form the subjects of this controversy. First, the deed provides that, in case of recovery of the land in kind, the trustee, after conveying one-half of it to the attorneys, ‘‘shall also make and execute a deed in fee-simple, in due form of law, for the remaining half of said land and real estate, to said Julia Jones, wife of Lewis Jones, in whom [312] the fee-sitnple of said real estate is, and has been heretofore;” and, incase damages shall be recovered, instead of the land, the trustee shall pay one-half thereof to the attorneys named, and also the costs of the suit, and the costs of executing the trust, “and the balance remaining of said funds, after the payment of said costs,, charges and expenses, shall be paid over to her, the said Julia Jones, wife of Lewis Jones, as her absolute property.” Beforé the termination of the litigation, Julia Jones died. The litigation resulted in a compromise, on. the basis of eight thousand dollars damages being recovered by the plaintiff. Four thousand dollars of this seem to have been paid directly to the attorneys, as their fees, in pursuance of the contract recited in the deed of trust.. Four thousand and twenty dollars were paid into the hands of the trustee, one thousand dollars of which were, by agreement of all parties, paid out to satisfy the liabilities of the sureties, for whose indemnity the deed of trust was, in part, given; so that there still remains,; in the hands of the trustee, the sum of three thousand and twenty dollars, to answer the judgment in this suit, less the costs of executing his trust. The plaintiff claims this fund, as the survivor of his wife, and the defendant,. Lewis, claims it, as her personal representative, under. the terms of the deed of trust. So that the only question to decide is, to which of these two parties the trustee should pay the fund — to the husband, or to the administrator of the wife’s estate ? It is noteworthy that the petition does not allege, that there was any mistake in drawing the deed of trust to Shepley, the trustee, nor is there any prayer for reformation of that instrument. On the contrary, the plaintiff alleges, in his petition, that, by the provisions of the trust deed to Shepley, the balance of three thous-. and and twenty dollars, remaining in the hands of the latter, was “to be paid to the said Lewis and Julia Jones, or the survivor of them.” This is certainly a very [313] singular allegation for the plaintiff to make, in view of the very plain provisions of the instrument under which he claims. While that instrument stands unimpeached, ‘ it, of necessity, constitutes an insuperable barrier to any relief, except it be relief based upon the grounds of mistake made, and a prayer for the correction of such mistake. Packliffe v. Seal, 36 Mo. 317. And the terms of the instrument being clear, there was no room for the introduction of parol evidence, to give the deed a different operation from that apparent on its face. Pooser v. Tyler, 1 McCord, 18; Koehring v. Muemminghoff, 61 Mo. 403 ; Murdock v. Ganahl, 47 Mo. 135. Contention is made- by counsel for the plaintiff, that the conveyance, by himself and wife, to the trustee, with reservation to the wife, etc., and that, as the wife-died before Shepley came into receipt of the money, that, therefore, the gift or trust failed; and that, as the money could not be paid to the wife, therefore, it must revert to® him, as donor. To this it may be replied, that the instrument, on its face, shows that it was not a voluntary trust, but was an instrument reciting a consideration, and, besides being under seal, imported a consideration. There is, therefore, no donor in the case. But there was a valuable consideration for the grant' to the wife, and this was the agreement made by the trustee, in consideration of the transfer of the property to him ; and it is immaterial that the amount to be recovered, whether of land or money, was not then definitely fixed and ascertained ; the deed was competent to pass whatever interest the husband and wife had in the subject matter of the trust, to the trustee; and it could not be revoked or recalled by the husband, after the death of the wife. The trust became complete, upon the delivery of the deed to the trustee, and that trust did not fail, because the death of the wife occurred prior to the trustee becoming possessed of the fund now in controversy. The judgment should be affirmed. All concur.