Bobb v. Wolff

• Citation: 148 Mo. 335,49 S.W. 996
• Parties: BOBB v. WOLFF et al.
• Decision Date: 21 February 1899
• Court: Missouri Supreme Court

49 S.W. 996

148 Mo. 335

BOBB v. WOLFF et al.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

EQUITABLE MORTGAGES — CONDITIONAL SALES — TRUSTS — LACHES.

1. In 1884 property was conveyed absolutely for an expressed consideration of $7,600, a fair price, subject to a mortgage for $4,000. This incumbrance the grantee assumed, and a note for $3,600, shortly overdue, from the grantor to the grantee, was then surrendered. The grantee took immediate possession, expended $3,000 on the property, and remained in control until his death, in 1891. During that period he neither demanded nor received interest from the grantor. In 1886 he gave the grantor an account of his receipts and disbursements in regard to the property, saying that he held the property in trust for him. Later in the same year he wrote the grantor, "Do you desire to redeem (or purchase) the property? * * * Though the time is out, I have no objection to do so, if you wish, now, on the terms originally agreed upon. Please let me hear from you at once." The grantor did not take advantage of the offer, and it did not appear what the "terms originally agreed upon" were. In 1891 the grantee said he would be glad when the matter should be "fixed up" by the grantor. Held, that the deed was not an equitable mortgage.

2. Nor did the grantee hold in trust for the grantor.

3. Two years after an absolute conveyance the grantor disregarded the grantee's offer to let him purchase or redeem, and the day before the ten-years limitation expired he sued to have the deed declared a mortgage. He had had full opportunity to learn all the facts, and in the meantime the property had greatly increased in value, and the grantee had died, and his estate had been settled. Held, that the grantor was guilty of laches.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Bill by John H. Bobb against Eliza J. Wolff and others. From a decree for defendants, plaintiff appeals. Affirmed.

A bill in equity was filed in this cause to have two deeds executed by plaintiff to Marcus A. Wolff in his lifetime, on September 18 and 19, 1884, declared a mortgage, and for an accounting. Prior to July, 1884, John H. Bobb and Abraham Siegel were co-partners. John H. Bobb was the owner of real estate, and as such was accepted by the probate court of St. Louis as surety on many bonds of William C. Jamison. It appears that on February 2, 1881, Siegel & Bobb borrowed from William C. Jamison and George W. Cline $4,000, and to secure its payment Bobb gave a deed of trust on the property in suit, known as "1403 Olive Street," in the city of St. Louis. On July 3, 1884, John H. Bobb borrowed of Marcus A. Wolff & Co. $3,600, and gave the following note, indorsed by William C. Jamison, therefor: "St. Louis, July 3rd, 1884. Two months after date I promise to pay to the order of William C. Jamison, Esq., thirty-six hundred dollars, for value received, negotiable, and payable without defalcation or discount, with interest from ____ at the rate of ____ per cent. per annum, payable at the Boatmen's Savings Bank. [Signed] John H. Bobb. [Indorsed] William C. Jamison. [Indorsed] M. A. Wolff & Co." Wolff discounted the note at the rate of 8 per cent., and that rate was accepted by Bobb. William C. Jamison became a defaulter for many thousand dollars, in July, 1884, to the estates of many decedents and minor children, and Bobb, as surety, became greatly involved also. John H. Bobb thereupon conveyed all of his property to his old partner, Siegel, De Groot, and the Planet Property & Financial Company. Bobb himself left the state, so that the ordinary process of law could not be served upon him. When the above-mentioned note of July 3, 1884, for $3,600, became due, Bobb did not pay it. On the 18th day of September, 1884, Bobb conveyed the property No. 1403 Olive street to Wolff by deed executed by himself alone. The consideration was stated as follows: "The said John H. Bobb hereby covenanting that he will warrant and defend the title to the said premises unto the said party of the second part, and unto his heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever, excepting as to the following incumbrances, which said party of the second part, for value received, assumes and hereby agrees to pay and discharge, viz.: A deed of trust of record to secure a note of $5,000, upon which $1,000 has been paid, leaving a balance of $4,000 on the principal of said note. All interest has been paid on said note up to April, 1884, when payment of said balance due on said note was extended for two (2) years from April, 1884, and four (4) interest notes were given, for $140 each, payable, respectively, in six (6), twelve (12), eighteen (18), and twenty-four (24) months after date. All of said notes were made by John H. Bobb and Abraham Siegel. The general taxes for the years 1884 and 1885, and a special tax for paving the street front of said property, now due." This deed seems to have been made with great haste, for on the next day another deed to the same real estate was made by Bobb and wife to Wolff, in which the consideration is recited to be $7,600, and Wolff assumes the payment of the $4,000 incumbrance to Jamison & Cline, and the interest notes thereon, and the taxes for 1884 and 1885, and a special paving tax. At this time Wolff surrendered to Bobb his note for $3,600. This canceled note was produced on the trial by Bobb. Plaintiff claims that contemporaneous with this deed there was a collateral agreement, and to corroborate this claim he offered and read in evidence the following letter: "M. A. Wolff & Co., Real-Estate Agents, No. 105 North Eighth Street. St. Louis, Nov. 17th, 1886. Mr. John H. Bobb, City — Dear Sir: Do you desire to redeem (or purchase) the property on Olive street? Though the time is out, I have no objection to do so, if you wish, now, on the terms originally agreed upon. Please let me hear from you at once, and oblige yours, truly, M. A. Wolff." We can find no evidence that Bobb accepted the proposition made in this letter, or that he ever afterwards spoke or wrote to Wolff about the matter during Wolff's lifetime. The reasonable value of the property in 1884, at the date of the deed, was probably $7,500 or $8,000. The building was originally a dwelling house, and had been rented for $45 or $50 a month, but had been vacant in the summer of 1884 for a long time. In 1894 it was worth $21,000. Soon after the conveyance to Wolff he expended $3,000 in altering the house, and increased the rental to $100 per month. Plaintiff offered, as evidence tending to show Wolff was holding the property in trust or as mortgagee, certain conversations of Mrs. Lucy Taylor, a sister of Bobb, with Wolff. Mrs. Taylor testified that about the time the deed to Wolff was made she met Wolff in Siegel's store, west side of Broadway, near Olive, and he asked her where her brother John was, and she said he had just stepped out, and Wolff then said, "You know I am going to do all I can for John; you know I am a friend of yours." In February, 1886, Mrs. Taylor, at the instance of her brother, requested Wolff to furnish an itemized account of the receipts and disbursements made by him on account of house 1403 Olive street. At that time Marcus A. Wolff was doing business under the style of M. A. Wolff & Co. He had no partner. Edward Wolff, his son, was his bookkeeper, and Paul Beck a clerk. They prepared an account for her in this form: "M. A. Wolff & Co. in Account with House 1403 Olive Street. 1884-5-6." Items of credit beginning October 13, 1884, down to and inclusive of January 15, 1886, aggregated $766. The debits, including the $3,600, and interest notes, taxes, repairs, water licenses, etc., beginning September 19, 1884, and including February 15, 1886, amounted to $7,583.25, leaving a balance of $6,817.25 which the house had cost Wolff to that date, Wolff not having as yet paid off the prior mortgage of $4,000. Some time in February M. A. Wolff handed this statement, with vouchers, to Mrs. Taylor, to give to John H. Bobb, who was still sojourning in East St. Louis, Ill., saying to her: "You know that I hold it in trust for your brother John. I told you, when this took place, I would do all I could for him." Nothing having, presumably, been heard from Bobb by Marcus A. Wolff, on November 17, 1886, Wolff wrote him the letter of that date, already noted and copied. Abraham Siegel testified that in 1891 M. A. Wolff had a conversation with him in which he said he would be glad if Mr. Bobb would be able to get out of the hole if the matter was fixed up about the Olive street property. On July 14, 1891, Marcus A. Wolff died intestate, leaving Eliza J. Wolff, his widow, George P. Wolff, Edward B. Wolff, Alice S. Wolff, and Eliza C. Wolff, his children, as his only surviving heirs. His widow qualified as administratrix July 21, 1891, and his estate was finally settled April 12, 1894. On the 15th day of September, 1893, a suit in partition was instituted by George P. Wolff, one of his sons, against Edward B. Wolff and the other heirs, for the partition of the real estate. On May 14, 1894, a final judgment of partition was rendered, and the property 1403 Olive street, St. Louis, was allotted to Edward B. Wolff. No claim was presented by John H. Bobb against the estate of Marcus B. Wolff pending the administration. John H. Bobb was not a party to the partition suit. No effort to...