Ales v. Epstein
| Decision Date | 04 June 1920 |
| Docket Number | No. 21238.,21238. |
| Parties | ALES v. EPSTEIN et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jasper County; B. A. Pearson, Judge.
Action by Ruth Ales against Harry Epstein and others. Judgment of dismissal, and plaintiff appeals. Affirmed.
This is a proceeding in equity, and was commenced in the circuit court of Jasper county, Mo., at Carthage, on January 17, 1918. The cause was transferred to the circuit court of said county at Joplin, and tried there. The petition alleges that in December, 1917, the legal title to lot 8 in Moffet's subdivision, an addition to Joplin, Jasper county, Mo., was vested in the heirs of Mahala J. Chamberlain, deceased, namely, Albert Hennell, Nellie Elliott, Beulah Hennell, Anna G. Thompson, Mabel Hennell, and Kate Hennell, as tenants in common; that at the November term, 1917, of the Carthage circuit court, there was pending therein a partition suit between said Albert M. Hennell, as plaintiff, and the other tenants in common, supra, as defendants, in which a decree was rendered, providing for the sale of above lot, at public vendue, by L. C. Wormington, special commissioner; that said commissioner advertised said property for sale at the Carthage courthouse on December 20, 1917; that for a long time prior to said last-named date plaintiff herein had been in possession of said real estate as tenant; that said property was reasonably worth $4,525 and more; that plaintiff and defendant Harry Epstein had been personal friends for a long time, and she often went to him for counsel and advice in matters pertaining to her business ventures; that, relying on said defendant's superior ability and sagacity, and relying upon his honesty and fair dealing with plaintiff, she requested him to go with her to attend said sale, to act in her behalf, and to assist her in purchasing said property; that plaintiff agreed to pay him, in addition to his expenses, a reasonable sum for his said services; that said defendant agreed to act for her and perform the services aforesaid; that they Were both present at above advertised sale; that plaintiff bid for said property $4,525, it being the highest bid, and which said sum she was willing, ready, and able to pay therefor; that said commissioner declared said property had been sold to plaintiff for above sum; that the undertaking and agreements aforesaid were by parol.
It is further alleged that said Epstein, in violation of said undertaking and agreement, wrongfully and fraudulently, for the purpose of cheating and defrauding plaintiff, in order that he might become the owner of said property, represented that it was to her interest that the deed from the commissioner for said real estate should be made, and delivered, to said Epstein; that he promised, without delay, to convey the same to this plaintiff; that, relying upon said defendant, as heretofore stated, she consented to above conveyance being made to him; that thereafter said defendant, in violation of his said agreement, for the purpose of cheating and defrauding her, conspired and confederated with the defendants Benjamin Raymond and David Raymond, whereby they procured said deed to be made to said Epstein and said Raymonds; that at all times since said sale she has been ready, able, and willing to take the title to said property in accordance with said agreement made with said Epstein, and to pay said $4,525, with the reasonable expenses and charges of said defendant, etc.; and tenders the same into court.
The petition concludes by asking the court to declare that defendants hold the property in trust for plaintiff; that the court ascertain the amount of all moneys, if any, expended by said Epstein; to determine the interest thereon from date of said sale; to fix reasonable compensation to said Epstein for his said services; and that said defendants be divested of the title to said property, and the same be vested in plaintiff.
Defendants' answer contains: First, a general denial; second, it alleges that the agreements alleged to have been made in petition were not in writing, and are contrary to the statute of frauds; third, that plaintiff released in writing whatever claim she may have had to said property mentioned in petition; fourth, that the petition states no cause of action upon which plaintiff can recover in equity against defendants, or either of them; fifth, it charges that plaintiff and husband are aliens, and, as such, have no right to maintain this action.
Plaintiff moved to strike out the fifth ground above stated, and her motion was overruled. She then filed a reply denying the allegations of said answer.
We will consider the evidence and rulings of the court in the opinion to follow.
On May 18, 1918, the court found the issues against plaintiff, dismissed her bill, and judgment was entered accordingly. A motion for new trial was filed by plaintiff, which was overruled, and the cause duly appealed by her to this court.
John J. Wolfe, of Joplin, for appellant.
Haywood Scott, of Joplin, for respondents.
BAILEY, C. (after stating the facts as above).
Appellant in her first assignment of error contends that the trial court erred in refusing to sustain her motion to strike out the fifth paragraph of defendants' answer, which reads as follows:
"That plaintiff and husband are aliens and subjects of the kingdom of Russia and not citizens of the United States, and have not lawfully declared their intention of becoming such, and under the law cannot hold real estate, and cannot maintain this suit for said lot, even though she might otherwise have some interest therein."
In passing upon said motion, the allegations of paragraph 5, supra, must he taken as true. Section 750, R. S. 1909, among other things, contains the following provisions:
"It shall be unlawful for any person or persons not citizens of the United States, or who have not lawfully declared their intention to become such citizens, to hereafter acquire, hold or own real estate so hereafter acquired, or any interest therein, in this state, except such as may be...
To continue reading
Request your trial