Bliss v. Prichard

• Decision Date: 31 October 1877
• Citation: 67 Mo. 181
• Parties: BLISS et al., Appellants v. PRICHARD.
• Court: Missouri Supreme Court

67 Mo. 181

BLISS et al., Appellants

v.PRICHARD.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Mercer Circuit Court.--HON. G. D. BURGESS, Judge.

C. M. Wright and Hyde & Orton, for appellants.

1. Whether the evidence is regarded as establishing the fact that Prichard purchased the lands in his own name, while instructed to purchase for plaintiff, or as establishing the relation of attorney and client only, between him and the plaintiffs, in either case, the finding should have been for the plaintiffs. Story on Agency, Secs. 189, 207, 211; Thornton v. Irwin, 43 Mo. 153; Grumley v. Webb, 44 Mo. 444; Zeigler v. Hughs, 55 Ill. 302; Story's Eq. Jur. § 311; Howell v. Ransom, 11 Paige 538; Aberdeen R. R. Co. v. Blackie Bros., 1 McQueen (House of Lords) 461; Gardner v. Ogden, 22 N. Y. 328; Barnard v. Hunter, 39 Eng. Law & Eq. 569; Casey v. Casey, 14 Ill. 114; Jenning v. McConnel, 17 Ill. 150; Cowing v. Greene, 45 Barb. 585.

2. To make silence a ratification, the onus is on the defendants to show that not only did the plaintiffs know the facts, but that they had legal advice to explain their rights. Story Eq. Jur., §§ 310, 311; Casey v. Casey, 14 Ill. 112; Jenning v. McConnel, 17 Ill. 148; York Building Co. v. McKenzie, 8 Brown's Cas. in Parl. 42; Lewin v. Dille, 17 Mo. 64.

3. The statute of limitation, and equity by analogy to the statute, gave plaintiffs ten years to pursue their remedy after the discovery that Prichard had bought the lands in his own name. Perry v. Craig, 3 Mo. 516; Richardson v. Robinson, 9 Mo. 810; Thompson v. Lyon, 20 Mo. 156; Davis v. Fox, 59 Mo. 127; Michaud v. Girod, 4 How. 503, 561; Kelly v. Hurt, 61 Mo. 466.

A. S. Harris for respondent.

1. The original petition in this case was filed nearly nine years after the purchase by Prichard. As an excuse for this gross laches, it alleges that plaintiffs did not know of his purchase for a long time after it was made. This allegation is too vague and uncertain to be the basis of any action in a court of justice. The petition does not state facts sufficient to constitute a case of action. Johnson v. Johnson, 5 Ala. (N. S.) 90, 100; Bertine v. Varian, 1 Edw. Chy. 343; Harwood v. R. R. Co., 17 Wall. 78; McQuiddy v. Ware, 20 Wall. 19; Marsh v. Whitmore, 21 Wall. 185; Buford v. Brown, 6 B. Monroe 555; Williams v. First Pres. Ch., 1 Ohio 478; Kerr on Fraud, &c., 365, 367; Hill v. Miller, 36 Mo. 194; Hill on Trustees, (3 Am. Ed.) side pp. 525, 168, top pp. 789, 255, in note.

2. The acceptance by the plaintiffs of the proceeds of the sale, with full and distinct notice that their agent and attorney had violated their instructions, was a ratification of his act. Cordova v. Hood, 17 Wall. 8; Story's Eq., § 400.

3. The plaintiffs have lost all right to relief, if they ever had any by their long acquiescence and gross laches in prosecuting their claim. Bergen v. Bennett, 1 Caines Cas. 19; Sheldon v. Rockwell, 9 Wis. 164; McKnight v. Taylor, 1 How. 168; Kerr on Fraud & Mistake, pp. 303-4-5-6; Marsh v. Whitmore, 21 Wall. 185; Landrum v. Union Bank, 63 Mo. 56; Moreman v. Talbott, 55 Mo. 397; Mooers v. White, 6 John. Ch. 360; Prevost v. Gratz, 6 Wheat. 498; Story's Eq. § 1520; Johnson v. Toulmin, 18 Ala. 50; Davis v. Fox, 59 Mo. 127; Tatum v. Holliday, 59 Mo. 426; Broderick's Will, 21 Wall. 519.

HENRY, J.

The substance of the allegations in the petition is, that in 1860 Phelps, Bliss & Co., a mercantile firm of the city of New York, placed in the hands of George T. Prichard, an attorney at law, in Mercer county, Missouri, for collection a claim against Cleveland & Winn, a mercantile firm doing business at Princeton, in said county; that in April, 1860, the attorney instituted a suit by attachment on the claim against the members of said firm, and the suit of attachment was levied on the lands in controversy; (a particular description of the lands is not here necessary;) that in July, 1863, there was a final judgment for plaintiffs for $1,020.52, against Cleveland alone, the suit having been dismissed as to Winn; that execution was issued July 18th, 1863, and the lands attached were sold September 14th, 1863, and purchased by said George T. Prichard, to whom the sheriff afterwards executed a deed for the same; that prior to the sale, plaintiffs instructed said Prichard to buy said lands in the name of George Bliss for the benefit of the firm; that neither of said partners at the time resided in Mercer county, or was present at the said sale, or, for a long time thereafter, had any knowledge that Prichard had purchased said land, or any part thereof; that the land did not sell for enough to pay their debt, costs and attorney's fee, but that they realized only $797.76; that the lands sold were then worth $3,000; that Prichard died in 1864. Plaintiffs offer to return the money received by them from Prichard, and ask that the sale and conveyance of the lands to Prichard be set aside, and the title vested in them, and for an account, &c. The adult defendants, Mary Jane Prichard, the widow of Geo. Prichard, Mary his daughter, and Joel H. Shelley, husband of Ellen Prichard, deceased, demurred to the petition, and the minor defendants, by their guardian ad litem answered putting in issue the allegations of the petition. The court overruled the demurrer, and the adult defendants declining to file an answer, there was a trial of the cause, on the issues made by the pleadings between plaintiffs and the minor defendants, at the March term, 1875, of the circuit court of Mercer county, which resulted in a finding for defendants, and a judgment dismissing plaintiffs' bill, from which they have duly prosecuted their apppeal to this court.

1. ATTORNEY AND CLIENT: trusts: laches.

The evidence clearly established the following facts: that the demand of Phelps, Bliss & Co., against Cleveland & Winn was received by Prichard, as an attorney, for collection in 1860; that in the spring of 1860, he instituted a suit in attachment against Cleveland & Winn on that demand; that in 1863, he obtained a judgment for $1,020 against Cleveland, having previously dismissed as to Winn; that the lands in question were sold by the sheriff under an execution issued on said judgment, and that Prichard purchased them in his own name, and procured the sheriff's deed for the same; that pending the suit he had been instructed by plaintiffs to purchase said lands in the name of Geo. Bliss for the benefit of the firm, and if this were all of the case, there could be no doubt of plaintiffs' right to the relief they ask; and, to this extent, the authorities cited by their counsel are apposite and conclusive

Geo. T. Prichard died in October, 1864. This suit was commenced August 15th, 1872. The evidence shows that in the summer or fall of 1864 plaintiffs were informed by letter, that Prichard had bought the lands. The letter was written by Calvin Butler, in response to one received by him, he says, from Phelps, Bliss & Co., or a law firm in New York representing them. The letter, which he received, he says was a complaining letter, showing that they were dissatisfied. Butler was a lawyer at Princeton, whom Prichard retained to attend to the case against Cleveland & Winn during Prichard's absence in the army in 1862, and who, before and after that judgment was rendered, corresponded with plaintiffs in regard to the business. In 1864, as we have seen, Prichard died, and the lands descended to his wife and children-- and a portion of them have been disposed of. The evidence establishes that in 1863, when these lands were sold, there was no demand for real estate; that it was depressed and scarcely had a cash value in Mercer county. One witness testified that he attended the sale with a view of purchasing thirteen acres of the land, but he thought it sold too high and declined to purchase; that the land in 1872 was worth six or seven times as much as its value in 1863. Another witness, an extensive land owner and dealer in real estate, whose land a portion of this adjoined, testified that it sold at the execution sale for more than it was then worth; that in 1872, when this suit was instituted, it was worth ten times its value in 1863. Since the sale in in 1863, a railroad has been completed through Mercer county, which the testimony shows has greatly enhanced the value of these particular lands; that road was completed in 1871. This was substantially the evidence introduced on the trial, and the question is, did it entitle plaintiffs to the relief they asked? Were they not guilty of such laches as to forfeit any right to the relief, which, if they had been diligent, they would have been entitled to?

In Smith v. Clay, Ambler 645, Lord Camden said: “A court of equity, which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, when the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court.”

In Badger v. Badger, 2 Wallace 94, the court held that, “there is a defense peculiar to courts of equity founded on lapse of time, and the staleness of the claim, when no statute of limitations governs the case.”

In Harwood v. Railroad Company, 17 Wallace 81, the court observed that, “without reference to any statute of limitations, the courts have adopted the principle that the delay which will defeat a recovery must depend upon the particular circumstances of each case.”

In McQuiddy v. Ware, 20 Wallace 19, the court remarked that, “equity always refuses to interfere where there has been gross laches in the prosecution of rights. There is no artificial rule on such a subject, but each case, as it arises, must be determined by...