28 S.W. 640 (Mo. 1894), Miller v. Wilson

Citation:28 S.W. 640, 126 Mo. 48
Opinion Judge:Macfarlane, J.
Party Name:Miller et al. v. Wilson, Administrator, Appellant
Attorney:Karnes, Holmes & Krauthoff for appellant. J. W. Jenkins for respondents.
Case Date:December 22, 1894
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 640

28 S.W. 640 (Mo. 1894)

126 Mo. 48

Miller et al.

v.

Wilson, Administrator, Appellant

Supreme Court of Missouri, First Division

December 22, 1894

Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.

Affirmed.

""Karnes, Holmes & Krauthoff for appellant.

(1) Plaintiff Miller was not a competent witness. R. S. 1889, sec. 8918; ""Randall v. Randall, 64 Vt. 419. (2) Under the evidence defendant was entitled to a decree dismissing the petition. (3) The evidence does not support the basic allegation of the petition that Hall made an arrangement with Towne to collect the money as it became due from the plaintiffs for Cochran, and that said money, when so collected, should be payments on said Towne notes, and that Cochran was fully informed of said arrangements and sanctioned and ratified the same.

""J. W. Jenkins for respondents.

(1) Hall was the agent of both Cochran and L. W. Towne. The testimony shows that he acted as such and that they both, with a full knowledge of all the facts, adopted and ratified every act, except embezzling their money and absconding. As to appointment, see Mechem on Agency (1889), sec. 81; as to ratification, see ""Ibid., sec. 146; as to estoppel, see ""Ibid., sec. 84. (2) Mrs. Miller was a competent witness. The transactions to which she testified were all had with Hall, the trustee and agent of Cochran. ""Orr v. Rode, 101 Mo. 387; ""Ward v. Ward, 37 Mich. 253. (3) Cochran's conduct, throughout the whole of these transactions, estops the defendant from denying that Hall was authorized to receive the money for Cochran. The trial court found the facts in favor of the plaintiffs, and the finding is sustained by the evidence, and this case is clearly within the rule where this court will not disturb the finding of the trial court.

OPINION

[126 Mo. 49] Macfarlane, J.

The suit is in equity to cancel and declare satisfied a certain deed of trust, which will be more particularly described.

On the first day of September, 1886, one Samuel Cochran sold and conveyed to L. W. Towne lots 119, 120, 121 and 122 in Garfield Park, in Kansas City. To secure two notes each for $ 387, a part of the purchase price, the said Towne executed and delivered to the said Cochran a deed of trust on said lots, which was duly recorded.

On the nineteenth of October, 1886, Towne sold and by deed of general warranty, conveyed said lots [126 Mo. 50] 120, 121 and 122 to plaintiff, Maria E. Miller, and took back from her a deed of trust to secure two notes for $ 400 each, a part of the purchase price. On the same day the said Towne sold, and by general warranty deed conveyed, lot 119 to the two plaintiffs, jointly, and took back a deed of trust from them on the same lot to secure two notes for $ 125 each, a part of the purchase price of the lot. Neither of these plaintiffs at the time had actual knowledge of the prior deed of trust on the same lots given by Towne to Cochran.

Both these...

To continue reading

FREE SIGN UP