Bibb v. Means

• Decision Date: 31 October 1875
• Citation: 61 Mo. 284
• Parties: B. F. BIBB, Defendant in Error, v. MARY E. MEANS, Plaintiff in Error.
• Court: Missouri Supreme Court

61 Mo. 284

B. F. BIBB, Defendant in Error,

v.MARY E. MEANS, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Circuit Court of Hickory County.

Barry & Leaton, for Plaintiff in Error.

I. Bibb was estopped from claiming the property after inducing the defendant to purchase it. (Huntsucker vs. Clark, 12 Mo., 333; Newman vs. Hook, 37 Mo., 207; Bunce vs. Beck, 46 Mo., 327; Rutherford vs. Tracy, 48 Mo., 326; Rice vs. Bunce, 49 Mo., 231.)

II. The court could not issue a writ of restitution in this case. Such writ only lies when the successful party has once had possession, and has been wrongfully kept out of the use of the property.

W. P. Johnson, for Defendant in Error.

I. In order to constitute an estoppel some act of the one party must be done or suffered that has misled the other. There was nothing of the kind here. (Bigel. Estop., 473.)

II. All the money that Mrs. Means should have received from Bibb, was the amount she actually paid for the quit-claim deed, and this sum the court decreed her.

HOUGH, Judge, delivered the opinion of the court.

The object of the petition in this case was to compel the defendant to convey to the plaintiff the legal title to certain real property therein described.

In the year 1858 James Atkinson, acting under a power of attorney from George Dixon and wife, executed to Mark L. Means, in consideration of the sum of sixty dollars, to be paid by said Means, a bond for title to two lots in the town of Warsaw, Benton county, Mo., which were the property of the wife of said Dixon. In 1863 Means died intestate, without having paid any portion of the purchase money. On the 12th day of October, 1868, said lots were regularly sold by the administrator of the estate of said Means to the plaintiff, who, after the timely approval of said sale by the proper court, received a conveyance therefor from said administrator, bearing date January 21, 1869. On the 3d day of February, 1869, George Dixon, who had in the meantime become invested with the title to these lots through the last will of his wife, then deceased, executed to the defendant, who is the widow of said Means, a deed for the two lots in question for the sum of sixty dollars paid by her to said Dixon. The defendant was fully aware at and before the time said deed was obtained by her of the condition of the title and of the purchase by the plaintiff at the administrator's sale. The plaintiff, Bibb, brought into court for the use of the defendant the sum paid by her, and asked that she be compelled to convey to him the title to said lots, and for general relief.

The following extract from the defendant's answer contains the substance of her entire defense: “that said conveyance from George Dixon to said defendant took place long after said administrator's sale to plaintiff, and with the knowledge and assent of said plaintiff, and by and with the advice and consent of said plaintiff, and with the full and perfect understanding by and between said plaintiff and said defendant that said Geo. Dixon was conveying said two described lots 7 and 8, in block 2, in good faith to said defendant, and with the express understanding on the part of said plaintiff that he acted as the agent of defendant in purchasing the said two lots 7 and 8, block 2, in Whipple and Ballou's addition to Warsaw, at said administrator's sale, and with the further understanding on the part of said plaintiff that when he, said plaintiff, paid the amount of his said bid, $525, at said administrator's sale, which defendant avers plaintiff has never yet done, that then said defendant would be indebted to said plaintiff in said amount of money so advanced by said plaintiff to and for said defendant and as her agent, and that said plaintiff held whatever title he derived to said two described lots by virtue of said administrator's deed in trust for, and as the sole and separate property of, said defendant.” The foregoing allegations were denied by the plaintiff. The phraseology of that portion of the foregoing extract which refers to the understanding of the plaintiff alone is peculiar, though we shall treat it as having been not artfully but inartificially drawn, and as intended to allege an agreement between the parties.

The testimony of the defendant in support of her plea was as follows: “I had not spoken to Mr. Bibb about bidding off the lots before the administrator's sale, but Mr. Bibb came to my house the same evening he bid off the property and told me he had bid off lots 7 and 8, block 2, for me, and that I could have them, and that I must pay the amount of his bid, $525. I thanked him, and told him I would do so if I could. I went on and got title to the lots from Dixon in my own name and for my own benefit, with the knowledge of Mr. Bibb, and under his advice. Mr. Bibb never intimated to me that he claimed the title I got from Dixon, or expected any interest in the same, either before I got the deed from Dixon or at the time. He did not set up any adverse title to mine at that time, and I never heard that he claimed title to the lots in question until he commenced this suit. My daughter has taught school and paid off some of the men who helped me to raise the money to get my title from Dixon. Mr. Bibb paid $15 of that money, and told me that I should pay the others first and pay him when I got it. It was understood by Mr. Bibb and myself that the deed I got from Dixon was for me and my benefit, and that I should pay Mr. Bibb the money he bid at the administrator's sale as soon as I could.”

It appears from the record that the administrator of Means sued Bibb for the amount of his bid, and an answer filed by Bibb in that suit in 1869, together with a supplemental answer filed by him in 1870, and an amended answer filed at the February term, 1871, were read in evidence by the defendant, in the last of which Bibb set up that he had bought the lots at said...