Tatum v. Holliday

• Citation: 59 Mo. 422
• Parties: SOPHIA A. TATUM, et al., Appellants, v. SAMUEL N. HOLLIDAY, Adm'r of JNO. S. MCCUNE, et al., Respondents.
• Decision Date: 31 March 1875
• Court: United States State Supreme Court of Missouri

59 Mo. 422

SOPHIA A. TATUM, et al., Appellants,

v.SAMUEL N. HOLLIDAY, Adm'r of JNO. S. MCCUNE, et al., Respondents.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

J. T. Tatum, with Lackland, Martin & Lackland, for Appellants.

I. The doctrine as to staleness of claim does not apply to this case. The bill was filed in 1871. The sale was made in 1862. Some one or other of the plaintiffs had been endeavoring for several years to induce McCune to stand by the agreement made for redemption. It is not stale as to the minors and the feme covert. (Tyl. Inf., p. 159.) Neither is it stale as to the other plaintiffs,--sufficient time for the enforcement of the right of action, not having elapsed, to create a bar by any analogy to the statute of limitations. (Bollinger vs. Chouteau, 20 Mo., 89; Anthony vs. Rogers, Id., 285; McNair vs. Lot. 34 Mo., 285; Damschroeder vs. Thias, 51 Mo., top p. 104; Ricords vs. Watkins, 56 Mo., 553; Poe vs. Domic, 54 Mo,, 127.)

II. The sale, having been conducted solely by the sheriff's deputy or agent, is void. (2 R. C. 1855, p. 1554, § 2; Pearson vs. Jamison, 1 McLean, 197; Berger vs. Duff, 4 Johns. Ch., 368; Hill, Tr., pp. 175, 540; Perry's Tr., § 799 and notes; Graham vs. King, 50 Mo., 22; Howard vs. Thornton, 50 Mo., 291; Bales vs. Perry, 51 Mo., 449; Whittlesey vs. Hughes, 39 Mo., 13; White vs. Watkins, 23 Mo., 423.)

III. A constructive trust is imposed upon a purchaser, whenever he has acquired the title by conduct in the shape of assurances, or promises, or representations. (Clarkson vs. Creely, 35 Mo., 94; Same case, 40 Mo., 114; Dover vs. Kennerly, 38 Mo., 469; Same case 44 Mo., 145; Rutherford vs. Williams, 42 Mo., 18; McNew vs. Booth, 42 Mo., 189; Grumley vs. Webb, 44 Mo., 445; Sharkey vs. Sharkey, 47 Mo., 543; Chesley vs. Chesley, 49 Mo., 540; Wright vs. Barr, 53 Mo., 340.)

IV. The property was easily susceptible of sub-division, but it was sold in the lump. It brought less than its value. A sale under such circumstances renders the title in the purchaser voidable, at the option of the injured side. (Evans vs. Ashley, 8 Mo., 177; Gray vs. Shaw, 14 Mo., 341; Goode vs. Comfort, 39 Mo., 313; Carter vs. Abshire, 48 Mo., 300; Sumrall vs. Chaffin, 48 Mo., 402; Chesley vs. Chesley, 49 Mo., 540; Rector vs. Hart, 8 Mo., 448.)

Glover & Shepley, with Holliday, for Respondents.

I. Under the circumstances, as plaintiffs have waited until the property has largely increased in value before they sought to enforce this alleged trust, and for so long a period as over nine years, a court of chancery will not now enforce their claim. (2 Sto. Eq. Jur., § 1520; Boone vs. Mo. Iron Co., 17 How., 340; Baker vs. Whiting, 3 Sumn., 475; Brazier vs. Gratz, 6 Wheat., 528; Holt vs. Rogers, 8 Pet., 420; McNeil vs. Magee, 5 Mas., 244; McNew vs. Booth, 42 Mo., 189; Medsker vs. Swaney, 45 Mo., 273; Att'y Gen' l vs. Fishmongers Co., 5 Myln. & Cr., 16, 17.)

II. The mere fact that the property conveyed by deed of trust is sold in gross, is not, per se sufficient to avoid the sale; there must be some attendant fraud, unfair dealing or abuse by the trustee of the confidence reposed in him. (Goode vs. Comfort, 39 Mo., 313; Taylor's heirs vs. Elliott, 32 Mo., 175; Kellogg vs. Carrico, 47 Mo., 157; Carter vs. Abshire, 48 Mo., 300.)

WAGNER, Judge, delivered the opinion of the court.

This was a bill in equity, filed in the Circuit Court in March, 1871, to set aside a sale made under a deed of trust, and asking for permission to redeem. The deed of trust was executed in 1852, by David Tatum and Sophia A., his wife, to secure a note to one James M. Nelson for $5,000, with interest at the rate of six per cent. and payable in two years from date. David Tatum died in 1854, intestate. The plaintiff, Sophia A. Tatum, is his widow, and had a dower interest in the property. The other plaintiffs are the heirs of David Tatum, and at the time of the sale were all minors except three. The property was the family homestead of David Tatum, and consisted of five acres of ground, with house and other improvements, at the junction of Clark and Jefferson avenues, in the city of St. Louis. The trustee was John C. Richardson, who died in 1860, without executing the trust. Upon the petition of Nelson, the sheriff was appointed, in 1862, to sell the land to execute the deed of trust. The sale was made by a deputy, the sheriff himself not being present. The entire property was sold in a body, though it had been staked out and platted in fifty-three lots, with streets and alleys, though there was no record of it, and the streets and alleys were not dedicated. At the sale the defendant, McCune, bought the property for $12,600, and the sheriff made him a deed therefor.

One of the principal grounds relied on by the plaintiffs, is, that McCune purchased the property under such circumstances as impressed him with a constructive trust, and that they, therefore, have a clear and undoubted right to redeem. It appears pretty clearly from the evidence, that the main object with Nelson in ordering the sale was not to collect his debt, but to obtain a higher rate of interest. His note was bearing six per cent. only, and he wanted ten. But the majority of the heirs being minors, no valid agreement to that effect could be made with them, and so there was an understanding that he should bid in the property and that the heirs might redeem by paying him his debt with ten per cent. McCune held an assignment of a judgment, confessed by Sophia A. Tatum, and was present and bid at the sale, but this judgment only bound her dower interest.

It is contended that the arrangement with Nelson was communicated to McCune, who assented to the same, and agreed if he purchased to hold the property on the same terms, that thereupon Nelson ceased bidding and allowed McCune to buy. But after a careful perusal of the testimony, we are unable to arrive at the conclusion that McCune made any declarations or committed any act which would raise a resulting trust in favor of the plaintiffs. The evidence is insufficient to show that he made the promise, or understood it in the manner claimed by the plaintiffs; besides, Nelson still continued to bid, which is at variance with the position assumed.

Moreover, Joseph Tatum, who was then of age, and seems to have been instrumental in managing the affair, and in trying to bring about the arrangement, afterwards recognized the fact that the legal title was in McCune, which is irreconcilable with any trust set up on his part. His mother, Sophia A., did the same thing, and entered into a written agreement with him, by which she was to be permitted to obtain a reconveyance upon the payment of a certain amount of money within a specified period. Neither of these parties, nor the other heir, who was of age at that time, appear to have expressed any dissatisfaction with the sale or the manner in which it was conducted. Therefore, after lying by and remaining silent so long, it would be inequitable to allow them now to assert a right. Where a constructive trust follows a sale, and results in favor of parties, they must commence proceedings to redeem within a reasonable time, and that has certainly not been done here by those just above alluded to. Whether any of the other heirs became of age, so as to bring them within the same prohibition, we do not know, as their ages are not specified. It is, however, apparent that they are not all in that category, as one of them was a minor when this suit was instituted.

It nowhere appears in the various negotiations or acts of Sophia A. or Joseph Tatum affecting this property, that they had any authority to act for the infants, or that they even attempted to bind them. If McCune in his purchase obtained the fee simple title, then of course the interest of the minors as well as the others was divested. If, however, there were irregularities at the...