Alexander v. Schreiber

• Citation: 13 Mo. 271
• Parties: BASIL W. ALEXANDER v. JNO. SCHREIBER & HENRY W. HESTER HAGEN.
• Decision Date: 31 March 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 271

BASIL W. ALEXANDER

v.JNO. SCHREIBER & HENRY W. HESTER HAGEN.

Supreme Court of Missouri.

March Term, 1850.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

One Lesperance was the proprietor of land embraced in what is called Lesperance's addition. He gave a deed of trust of the same to secure to Choutean a debt for more than $10,000. Subsequently, and previous to 1841, he conveyed several lots to Alexander, covered by the deed of trust. 20th August, 1841, Alexander conveyed to Schreiber three of these lots, numbered 37, 38 and 39. His deed contained the words “grant, bargain and sell.” On the 13th November, 1841, Schreiber conveyed the same to one Hoelzel, as trustee, to secure certain debts, and Hesterhagen became the purchaser of the same lots at the sale of the trustee. This last sale took place 4th May, 1843. Soon after the sale to Schreiber, he discovered there was an imperfection in his title, by reason of the trust deed to Chouteau, and made complaints about it to Alexander. Hesterhagen seems to have become aware of the same defect soon after he became the purchaser, and also made application to Alexander to have the title perfected. Nothing effectual was done by Alexander, and on the 26th day of October, 1843, Hesterhagen commenced suit at law in the name of Schreiber, to his use, against Alexander, on the covenant of his deed. This suit was brought in St. Louis Circuit Court, and was defended by Alexander. Pending the suit, and on the 6th day of November, 1844, Alexander obtained a release to himself of the deed of trust to Chouteau. Subsequent to this, and on the 9th day of February, 1845, the suit at law was tried, and determined in favor of the plaintiffs, and damages assessed at $1,036 00. The case was carried to the Supreme Court by appeal on the part of Alexander, and after elaborate argument the judgment was affirmed. (The report of the case is to be found 10 Mo. R. 460.)

After the affirmance of the judgment, and on the 3rd August, 1847, Hesterhagen executed and tendered to Alexander a deed conveying the lots back to him. He refused to accept it. About the same time Alexander applied to Schreiber and obtained a paper from him, professing to release the damages recovered, so far as he could rightfully release them. Alexander then commenced the present suit, by filing his bill on the 23rd of November, 1847. The bill states the case, and the history of the proceedings at law down to their termination, as hereinbefore set forth. The bill moreover states that, at the time when Alexander sold to Schreiber, he was aware that Chouteau had the deed of trust, and the parties agreed that Alexander, at a convenient time, should procure a release of that deed, and in that event should not be liable on his covenant. The bill furthermore states that Alexander, since the trial at law, had discovered that Schreiber had never authorized the proceedings at law, in his name, and the same were prosecuted without his consent.

The bill prayed for an injunction against the judgment at law. The injunction was granted. The answer of Schreiber was taken by consent, without oath. As Schreiber claims nothing under the judgment at law, no notice is taken of his answer. Hesterhagen, by his answer, traverses the agreement between Alexander and Schreiber, and besides insists that if made, it was void by the statute of frauds. As to the assent of Schreiber to the proceedings at law, he pointedly denies the statements of the bill, and asserts that the suit at law was brought with the express consent and approbation of Schreiber. The other matters of the bill were not controverted by the answer. The answer moreover states the tender of a deed to Alexander, as hereinbefore set forth. Replication was filed to the answer, and the cause set for hearing. On the hearing, no proof was made of the agreement between Alexander and Schreiber as to procuring the release of Chouteau, as stated in the bill, and the weight of plaintiff's testimony went to show that Schreiber did not even know of the deed to Chouteau when he purchased of Alexander. Schreiber, the plaintiff's witness, and strongly in his interest, swears, “when I bought this land of Alexander I did not know of the deed of trust to Chouteau. We had no agreement at all about it. After the suit was brought I knew of it. Alexander told me there was a suit about the title, but he said he would make it all right when Chouteau got back from New York.”

Sarpy, another witness for plaintiff, says in a general way, that “everybody knew that Chouteau had a deed of trust on the whole tract. I don't know that any proclamation was made of the fact. Don't know as Schreiber asked me or knew the fact.”

Lesperance, the third witness says, “Sarpy, Chouteau's agent, promised Schreiber that Chouteau would make the title good, when he got home from New York. The conversation was at the sale, and on the ground.” Such was the evidence as to the agreement between Schreiber and Alexander, as stated in the bill. On the other point, i. e., the institution and prosecution of the suit, in Schreiber's name, without authority from him, the only evidence relied on by the plaintiff, to overthrow the answer, was the testimony of Schreiber. This witness says, “I heard there was a suit against Alexander for land. I employed no one to bring any suit for me, never knew that there was one, till I was told of it.” He says, “I talked with Hoelzel about the suit; he spoke with me a hundred times about it. Hesterhagen said the title was not good, he had brought a suit against Alexander he told me. I thought the land didn't belong to me anyhow. I supposed Hesterhagen had the whole control, after the sale, under the deed of trust. So I did, and said, when he said he had brought suit. I had no right, I thought. The paper states that the suit was brought without my knowledge. I know nothing at all about that suit of Hesterhagen against Alexander. I did know one was brought. Hesterhagen said he should sue Alexander. I said nothing. I had nothing to do with it. I didn't object because I thought I couldn't. As to going to Primm & Taylor's office with Hesterhagen about his suit with Alexander, I believe I once did go, but I don't recollect what I did or said. I don't like to say, this suit was talked about.”

On the other side, the defendant proved by three witnesses that the suit at law in Schreiber's name, for Hesterhagen's benefit, was brought with the full knowledge and consent of Schreiber. The defendant also proved by Whittelsey, that a deed...