Barlow v. Scott, No. 34082.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation85 S.W.2d 504
PartiesBARLOW et al. v. SCOTT et al.
Decision Date30 July 1935
Docket NumberNo. 34082.,No. 34086.,No. 34085.,No. 34083.,No. 34084.
85 S.W.2d 504
BARLOW et al.
v.
SCOTT et al.
No. 34082.
No. 34083.
No. 34084.
No. 34085.
No. 34086.
Supreme Court of Missouri, Division No. 1.
July 30, 1935.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Suit by Estelle Peper Bushman Barlow, individually and as trustee under the will of Caroline J. Peper, deceased, for Frederick Peper Bushman, a minor, and another, against Oreon E. Scott, Ruth Bushman, Anna Bushman, Frederick Peper Bushman, Christian Peper, and others. Final decree was rendered, and from an order granting a new trial, plaintiff and defendants Bushman appeal.

Affirmed.

Chas. J. Macauley, Harry H. Haeussler, and Foristel, Mudd, Blair & Habenicht, all of St. Louis, for appellants.

N. Murry Edwards and McLaran & Garesche, all of St. Louis, for appellants Bushman.

Bryan, Williams, Cave & McPheeters, Grant & Grant, and Jeffries, Simpson & Plummer, all of St. Louis, for respondents.

Christian Peper, of St. Louis, pro se.

HYDE, Commissioner.


This is a suit in equity seeking to compel defendant Oreon E. Scott to convey to plaintiff, individually (seven-ninths) and as trustee under her mother's will (two-ninths), certain real estate in the city of St. Louis. Plaintiff's petition sought a conveyance to her of this property on the theory that plaintiff had an oral agreement

85 S.W.2d 505

with defendant Scott for a loan made to purchase the property at a foreclosure sale, a determination of the amount due thereon, the cancellation of deeds of trust placed thereon by Scott, the cancellation of a written contract between all of the parties hereto in connection therewith, an accounting for rents, restraining orders, and other relief. A separate hearing was first ordered to determine "the validity and construction of the writing dated November 8, 1922," between the parties, and plaintiff's right to a conveyance of the land described therein. The court found for plaintiff and entered an interlocutory decree in her favor. This decree found and adjudged that defendant Scott "holds title to all of the property involved in this suit as equitable mortgagee and in trust for plaintiff" individually and as trustee of the trusts created by her mother's will, subject to such amounts as should be found due to Scott, and that the written agreement between the parties of November 8, 1922, should be canceled. The decree ordered an accounting and "further determination and adjudication of rights and equities between them, not by this decree determined." Appeals to this court from this decree were dismissed here as premature.

Thereafter, a referee was appointed and an accounting taken. In the meantime the mortgages on the property were paid when the United States condemned the property for its new Federal Building. The report of the referee recommended that judgment be rendered in favor of plaintiff against the Scotts for $65,182.21. Both plaintiff and the Scotts filed exceptions thereto, and after hearing the court entered a final decree, which adopted and confirmed the interlocutory decree as to plaintiff's right to a conveyance of the property from Scott, and for the cancellation of the written agreement between the parties of November 8, 1922; and which found that the amount due from the Scotts to plaintiff was $68,533.46, and entered judgment therefor. Defendants Scott then filed motions for a new trial, which the court sustained. Plaintiff and defendants Bushman have appealed from this order granting a new trial.

The foreclosure sale out of which this controversy arises was the result of a situation brought about by litigation over plaintiff's mother's estate concerning which four opinions, of this court, are to be found in the books. Bushman v. Bushman (1925) 311 Mo. 551, 279 S. W. 122; Bushman v. Barlow (1929) 321 Mo. 1052, 15 S.W.(2d) 329; Bushman v. Barlow (1931) 328 Mo. 90, 40 S.W.(2d) 637; and Bushman v. Barlow (1927) 316 Mo. 916, 292 S. W. 1039. The real estate in question was acquired by plaintiff (an undivided two-thirds interest) and her mother (an undivided one-third) June 1, 1917, by a deed from a special commissioner, appointed by the circuit court of the city of St. Louis to sell the same under a decree in partition. Their deed stated a consideration of $215,000. When plaintiff's mother died, Christian Peper Bushman, her son and plaintiff's brother, contested her will. He died in 1925, and his wife, Anna Bushman, his son, Frederick Peper Bushman, and his daughter, Ruth Bushman, who are also defendants herein, continued the contest. When we refer to the Bushmans, we refer to their father during his lifetime and to them thereafter. The 1927 decision of this court [Bushman v. Barlow, 316 Mo. 916, 292 S. W. 1039] settled the will case against the Bushmans by upholding the will. The separate trial on the equitable mortgage issue in this case now before us was had in 1928. One of the principal causes of all this litigation was that the will put the Bushmans' interest in trust with plaintiff as trustee. The will also made plaintiff trustee of the interest of Christian Peper, a minor son of plaintiff's deceased brother. An equity suit was also brought by the Bushmans against plaintiff herein, by which they sought to set aside the partition deed to plaintiff and her mother and have the entire title to the property declared to have vested in plaintiff's mother, and plaintiff excluded from any rights therein except as an heir of her mother. The first three decisions, above cited, disposed of the equity case, and in that suit the Bushmans were likewise unsuccessful. Both the will contest and the equity suit were commenced in 1921.

Plaintiff Mrs. Barlow, who was Estelle Peper Bushman before her marriage in 1923, and her mother had borrowed $150,000 in 1919, and this loan was secured by a deed of trust on the property. This obligation matured June 23, 1922, and the holder (the First National Company) thereof refused to renew, influenced, no doubt, by the legal battles between the Bushmans and plaintiff then well under way. Negotiations

85 S.W.2d 506

with the Scott brothers for refinancing this debt were begun. The Scott brothers, both of whom are defendants, were partners in the real estate business. (We hereinafter refer to Scott as meaning Oreon E. Scott, who was the one who carried on all negotiations herein.) Scott agreed to make a loan of $170,000, at 6 per cent. interest for five years, for a commission of $8,500. This amount was necessary because there were delinquent and current taxes and expenses, aggregating about $15,000, which had to be paid as well as the principal and interest of the old loan. Scott's proposition required that all parties sign the papers. This included plaintiff, the Bushmans, and Mr. Ottofy, who had been appointed receiver in the equity suit and who was required to obtain authority therefor by court order. There were negotiations between the attorneys for the parties in the pending suits, the will contest and the equity suit, and conferences were held between the attorneys for all parties and Scott. In these negotiations the interests of the minor were represented by the firm of Leahy, Saunders & Walther, who were also attorneys for the receiver. Since the parties themselves had little to do with this matter, practically all of the material facts herein come from the testimony of their lawyers. The receiver made application for authority to make the loan, and sent Scott a copy thereof, with a letter stating the terms of the loan, which Scott accepted. It is conceded that Scott was ready and willing at all times thereafter prior to the foreclosure in November to carry out this proposition. It was not consummated because the Bushmans objected to plaintiff being recognized in any loan papers as trustee under the trusts created by her mother's will, and because plaintiff, upon advice of her attorneys, "refused to sign any papers in which she was not so recognized as trustee and in which the appointment of the receiver was recognized." Naturally, these two irreconcilable positions "blew up" Scott's new loan proposition. In fact, Bushmans wanted a foreclosure. They "insisted that the property should be foreclosed" so that their interests therein could be freed from any trust created by the will, by having it bought in by some one at foreclosure as "a straw man" who would make a new loan or who would convey it to the parties and have them all sign a trust deed for the loan. Foreclosure proceedings followed when the trustee (St. Louis Union Trust Company) obtained permission to foreclose by filing an intervening petition in the equity suit. Both plaintiff and Bushmans took an appeal from this order.

It was during this period, after foreclosure was commenced, that plaintiff claims Scott agreed with her attorneys to make the separate loan to her upon which her petition herein is based. Plaintiff said that she discussed the matter with Mr. Morton Jourdan. He said that while he was not her attorney, he saw Scott on the morning of the foreclosure sale and that Scott either said to him, "I will lend her the money and buy the property in," or said, "She can buy the property in and I will loan her the money." Jourdan was not sure. Mr. Haeussler, one of plaintiff's attorneys, said that he approached Scott about this matter; that shortly before the sale Scott "expressed a willingness to negotiate this loan," but "wanted some protection so far as the litigation was then pending"; and that "it was then suggested that a sale be had under this deed of trust so that it would be gotten out from under this lis pendens." He also said that, on the morning of the sale, Scott told him "that he would lend the money to protect the interests of Miss Bushman"; that he would "go to the sale"; and that "the property will be protected." He said that separate negotiations with Scott for a loan to plaintiff independent of the other parties first began "just before the sale took...

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18 practice notes
  • Snadon v. Gayer, No. 10060
    • United States
    • Court of Appeal of Missouri (US)
    • April 10, 1978
    ...(Mo.App.1956), aff'd, 300 S.W.2d 480 (Mo.1957); Sutton v. City of St. Joseph, 265 S.W.2d 760, 768(8) (Mo.App.1954). See Barlow v. Scott, 85 S.W.2d 504, 519(11) (Mo.1935); Barr v. Nafziger Baking Co., 328 Mo. 423, 436, 41 S.W.2d 559, 565(14) (1931); Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389......
  • Kresge Co. v. Shankman, No. 21006.
    • United States
    • Missouri Court of Appeals
    • May 24, 1948
    ...Killiger, Jr., for appellant, S.S. Kresge Company, a corporation. (1) Jurisdiction. Kresge v. Shankman, 194 S.W. 2d 716; Barlow v. Scott, 85 S.W. 2d 504; Blake v. Shower, 202 S.W. 2d 895; Yacobianro v. J.D. Carson, 205 S.W. 2d 922; National Surety Corp. v. Burger's Estate, 183 S.W. 2d 93, T......
  • Stith v. St. Louis Public Service Co., No. 42697
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1952
    ...interlocutory only. This was necessarily an interlocutory judgment--rather, an interlocutory order, see Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, 519--as to any party as to whom, or on any issue on which, the new trial was not granted. And such judgment, nonfinal as to all parties and on all......
  • Thompson v. Hodge, No. 7922
    • United States
    • Court of Appeal of Missouri (US)
    • June 14, 1961
    ...Mo. 54, 236 S.W. 58; Schneider v. Patton, 175 Mo. 684, 75 S.W. 155; Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017. 7 Barlow v. Scott, Mo., 85 S.W.2d 504, 519; Madison v. Sheets, Mo., 236 S.W.2d 8 49 C.J.S. Judgments Sec. 11a, p. 35; 30 C.J.S. Equity Sec. 624a, p. 1025, et seq.; Bennett v. Cu......
  • Request a trial to view additional results
18 cases
  • Snadon v. Gayer, No. 10060
    • United States
    • Court of Appeal of Missouri (US)
    • April 10, 1978
    ...(Mo.App.1956), aff'd, 300 S.W.2d 480 (Mo.1957); Sutton v. City of St. Joseph, 265 S.W.2d 760, 768(8) (Mo.App.1954). See Barlow v. Scott, 85 S.W.2d 504, 519(11) (Mo.1935); Barr v. Nafziger Baking Co., 328 Mo. 423, 436, 41 S.W.2d 559, 565(14) (1931); Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389......
  • Kresge Co. v. Shankman, No. 21006.
    • United States
    • Missouri Court of Appeals
    • May 24, 1948
    ...Killiger, Jr., for appellant, S.S. Kresge Company, a corporation. (1) Jurisdiction. Kresge v. Shankman, 194 S.W. 2d 716; Barlow v. Scott, 85 S.W. 2d 504; Blake v. Shower, 202 S.W. 2d 895; Yacobianro v. J.D. Carson, 205 S.W. 2d 922; National Surety Corp. v. Burger's Estate, 183 S.W. 2d 93, T......
  • Stith v. St. Louis Public Service Co., No. 42697
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1952
    ...interlocutory only. This was necessarily an interlocutory judgment--rather, an interlocutory order, see Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, 519--as to any party as to whom, or on any issue on which, the new trial was not granted. And such judgment, nonfinal as to all parties and on all......
  • Thompson v. Hodge, No. 7922
    • United States
    • Court of Appeal of Missouri (US)
    • June 14, 1961
    ...Mo. 54, 236 S.W. 58; Schneider v. Patton, 175 Mo. 684, 75 S.W. 155; Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017. 7 Barlow v. Scott, Mo., 85 S.W.2d 504, 519; Madison v. Sheets, Mo., 236 S.W.2d 8 49 C.J.S. Judgments Sec. 11a, p. 35; 30 C.J.S. Equity Sec. 624a, p. 1025, et seq.; Bennett v. Cu......
  • Request a trial to view additional results

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