75 Mo. 503 (Mo. 1882), Peery v. Hall

Citation:75 Mo. 503
Opinion Judge:SHERWOOD, C. J.
Party Name:PEERY et al., Appellants, v. HALL AND RICE.
Attorney:Upon the plea of estoppel the court found for defendants, and gave judgment accordingly. Charles A. Winslow for appellants. George Hall for respondents.
Court:Supreme Court of Missouri
 
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Page 503

75 Mo. 503 (Mo. 1882)

PEERY et al., Appellants,

v.

HALL AND RICE.

Supreme Court of Missouri.

April Term, 1882

Appeal from Grundy Circuit Court. --HON. G. D. BURGESS, Judge.

AFFIRMED.

This was an action of ejectment for a lot in the town of Trenton, brought by Peery, Austin and Tindall against Hall and Rice. The answer consisted of a general denial and a plea of equitable estoppel. The land had been twice sold, first under a deed of trust and afterward under an execution issued upon a judgment in a suit to enforce a mechanic's lien. Plaintiffs derived title under the former sale; defendants under the latter. The deed of trust was executed and recorded after the work, for which the lien was claimed, commenced, but the sale under it took place before the sale under the lien. Pending the suit to enforce the lien the defendant in the suit died, and the suit was revived against his administrator without joining his heirs. The beneficiaries in the deed of trust, who were the plaintiffs in this suit, were not made parties, and in this suit claimed not to be bound by the judgment and sale thereunder. Upon this branch of the case the trial court found for them.

In support of the plea of equitable estoppel defendant Hall testified substantially as follows: He was one of the attorneys for the plaintiff in the lien suit. While the property was being advertised for sale under the execution plaintiff Peery, who was an attorney at law, called to see witness in relation to the conflicting claims of the parties. Peery said the question involved was one of law and could be settled without suit, and asked to see any authorities witness had to present in support of his claim; that witness showed him a decision, which Peery read and said it settled the question, adding that as plaintiffs had not been made parties to the lien suit he thought they had a right to redeem, but that the judgment was for more than the land was worth, and they, therefore, would not redeem. Witness offered to sell him the judgment, and he offered $500 for it, which witness refused. Witness understood from his talk, and thought he so stated, that plaintiffs would abandon all further claim to the property. Peery was acting as attorney for the administrator of the estate of the defendant in the lien suit and was a creditor of that estate to a large amount. After this conversation and about a week before the sale, Peery...

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