"On the 1st of June, 1888, John Berry, then the owner of the 117 acres of land in De Kalb county, Mo., involved in this proceeding, borrowed from William Q. Mintern $1,100, due in five years, and to secure the payment thereof executed a deed of trust on said lands. He died in said county in January, 1891, leaving a wife and eight children, and having first executed his will containing the following three clauses, and constituted his wife and his eldest son, the plaintiff Thomas Berry, executors thereof:
"`Sec. 1. To my beloved wife, Clarissa Berry, I give and bequeath all of my personal estate, with full power to sell and dispose of the same, for the purpose of paying all of the debts owing and contracted by me.
"`Sec. 2. To my said wife I devise and bequeath full power and control of all lands and real estate of which I may die seised, until our youngest child shall become of legal age, and from the issues, rents and profits of said lands, to support and maintain and educate our minor children.
"`Sec. 3. Upon our youngest child living becoming of legal age, I give and bequeath all the remainder of my estate, real, personal and mixed, in equal proportion, share and share alike, to the heirs of my body and hers, viz.: Thomas, Louisa, James, Maida, Killian, Charles, Carey and Carrie, and my said wife.'
"In June, 1893, the date of the maturity of the aforesaid note, Thomas Berry, then sole executor, his mother having previously died
paid $200 on the principal and executed an extension agreement whereby the payment of the balance of said note, to wit, $900, was extended for five years, making its maturity the 1st of June, 1898. On the 1st of June, 1894, the executor also paid $140 on the principal of said note. Thereafter the interest on said note was regularly paid until six months before its final maturity, to wit, June 1, 1898, at which time it amounted to $782.80. On February 9, 1898, W. M. Stigall, who was the guardian and curator of the persons and estates of the four children of said John Berry, who were still minors, together with Louisa Masoner, one of the adult heirs, filed in the De Kalb circuit court their petition for the appointment of some suitable person as trustee under the will to succeed Mrs. Berry, and Mr. Stigall was duly appointed. None of the other children were joined in that proceeding. The order of appointment contained a direction to said Stigall, as trustee, `to take charge of the aforesaid estate of John Berry, deceased, and rent the same to the best advantage, and, after paying all taxes and insurance and paying for necessary repairs on said real estate, to apply the balance of proceeds from said rent to the purposes set out and mentioned in said will,' and required him to give a bond of $600. A few months after this appointment, the said note matured, and Stigall, the trustee, borrowed $782.80, being the amount then due on said note, from one Thomas L. King, who applied the same to the payment thereof and the cancellation of the said note and the deed of trust securing the same. He executed a note to the said Thomas L. King for the same amount, signed by him as trustee, and, to secure the payment of this latter note, executed as such trustee a mortgage on the said land of John Berry, deceased, which was duly recorded. The note was due one year after date. On December 5, 1902, the payee of said note, nothing having been paid thereon, demanded a new note and mortgage for the amount then due, both of which were duly executed by the trustee, the new mortgage recorded, and the former note and mortgage canceled. On February 5, 1904, the trustee filed a settlement, showing a balance of $124.95 of rents collected after taking credit for certain disbursements. He had been previously sued by the plaintiffs for an accounting and praying his removal as trustee. That suit on appeal went to the Kansas City Court of Appeals (Berry v. Stigall, 125 Mo. App. 264, 102 S. W. 585), where the judgment of the lower court confirming the settlement made by the trustee was affirmed. The present action was afterwards brought by all the children who survived John Berry except one, who is represented by its assignee, and was against Thomas L. King, for the purpose of annulling and declaring void the last mortgage executed to him by the trustee, W. M. Stigall, as before recited. One of the children was still a minor and sued by his guardian. Thomas L. King, since the institution of this suit, died, and it is revived against W. M. Stigall and W. A. Wilson, his administrators. Upon a hearing in the circuit court there was a decree entered annulling and canceling the mortgage described in the petition, from which the defendant executors have appealed to this court.
"That equity seeks to prevent the unearned enrichment of one at the expense of another is the motive for an important part of its jurisprudence. Pomeroy's Equitable Remedies, § 920. This same idea is expressed in the maxim of the common law, `Nemo debet locupletari ex alterius incommodo,' and more fully in the maxim of the civil law, `Jure naturæ æquum est, neminem cum alterius detrimento et injuria fieri locupletiorem.' The principle is applied to aid those who have paid the debt of another under circumstances in which equity will imply a sufficient motive, whether such motive consists in the protection of an interest in the person invoking it, the performance of a duty pertaining to a fiduciary relation, or the invitation of the public, or of him whose debt is paid. While it does not extend its assistance to a mere volunteer who either foolishly or for charity's sake pays the debt of another, it relieves those whom the learned author already cited has divided into the three following classes: `First, those who act in performance of a public duty, arising either by express agreement or by operation of law; second, those who act under the necessity of self protection; third, those who act at the request of the debtor, directly or indirectly, or upon invitation of the public, and whose payments are favored by public policy.' Id. § 921. Judge Story in his work on Equity Jurisprudence (13th Ed.) vol. 1, p. 645, characterizes this principle as a doctrine belonging to an age of enlightened policy and refined, although natural, justice.
"In this case the defendants' intestate furnished the money to be used, and which was used, to pay off a mortgage on the farm of which the plaintiffs were the beneficial owners; one of them, Mr. Thomas Berry, being the executor of his father's will, through which they all derive their title. They now not only desire to keep the money but they claim that the gift was made in a bungling way and ask the aid of this court to compel the representatives of the benefactor to put the finishing touches to it by canceling the mortgage which he received as his security, believing it to be valid. The case presents itself in two questions: (1) Will the defendants be permitted to keep the money? And (2) if they keep it, will the court perfect their title by canceling and removing the mortgage as a cloud upon it?
"There is no intervening interest, either legal or equitable, to consider. The defendants seek reimbursement out of the same security
which was released by the payment of the debt, and which was available to the original creditor. He simply asks back the same fund which he advanced and which the debtor still holds intact. A majority of the present owners, who are plaintiffs in this same case, were then infants. It will not be claimed that their disability on that account protects them, for, had they themselves borrowed the money for the payment of the debt and made the mortgage, they could, upon becoming of age, have disaffirmed it only by returning the money which they received and had invested in the land, which would represent the fund for that purpose. MacGreal v. Taylor, 162 U. S. 688, 17 Sup. Ct. 961, 42 L. Ed. 326. It seems to me that in equity this case stands upon exactly the same foundations. Mr. Stigall was trustee under the will of Mr. John W. Berry for the minor heirs of the testator, who were the only beneficial owners until the arrival at age of the youngest of them. Until that time he had the absolute control of the land subject to the duty to keep it and make it earn the best income he could for the...
