Boogher v. Frazier

• Decision Date: 21 December 1889
• Citation: 12 S.W. 885,99 Mo. 325
• Parties: BOOGHER et al. v. FRAZIER.
• Court: Missouri Supreme Court

12 S.W. 885

99 Mo. 325

BOOGHER et al. v. FRAZIER.

Supreme Court of Missouri.

December 21, 1889.

ESTOPPEL IN PAIS.

Where the indorsee of one of several notes secured by a trust-deed obtains judgment against the indorser for the proceeds of the trust property derived from a sale to pay the notes retained by the indorser, he thereby elects to affirm the sale; and he cannot, after failing to obtain full payment of his note, resell the property for the residue, and, as purchaser, maintain ejectment for it against the former purchaser's grantees.

Appeal from circuit court, Carroll county; J. M. DAVIS, Judge.

Ejectment by Jesse L. Boogher and others against Milton E. Frazier. There was judgment for defendant, and plaintiffs appealed.

W. C. Marshall, J. W. Sebree, and Prosser Ray, for appellants. Hale & Sons, for respondent.

BRACE, J.

This is an action in ejectment to recover an 80-acre tract of land in Carroll county. On the 16th of September, 1873, James F. Chinn, who was then the owner in fee of the premises, and under whom both parties claim, with his wife, executed a deed of trust, with power of sale, conveying the same to Samuel Winfrey in trust to secure Hardin Simpson in the payment of three promissory notes and interest, — two for $300, each executed by said Chinn, payable to said Simpson; and one for $1,000, executed by William M. Kendrick, payable to said Chinn, and by him assigned to said Simpson. On the 24th of December, 1873, the 1,000-dollar note of Kendrick was indorsed, without recourse, by Simpson to Henry Bell & Son, and deposited with Messrs. Hale & Eads, attorneys, upon the agreement and under the circumstances particularly set out in Bell v. Simpson, 75 Mo. 485, of which case the present one forms the second chapter and sequel. A controversy having arisen between Simpson and Bell & Son as to the terms upon which said note was to be delivered, Hale & Eads declined to deliver said note, and the same remained in their hands until after the decision in the above-cited case. On the 25th of October, 1875, the promissory notes secured by said deed of trust remaining due and unpaid, Winfrey, the trustee, at the request of Simpson, sold the land under the deed of trust, and Simpson became the purchaser thereof, for the sum of $900, and afterwards, on the 14th of December, 1875, received the trustee's deed therefor. On the 26th of November, 1875, Simpson conveyed the land by warranty deed to Elihu Shannon, and on the 7th of February, 1876, Shannon and wife conveyed the land to John P. Minnis. On the 2d of June, 1877, Henry Bell & Son instituted in the Carroll circuit court the suit reported in 75 Mo., supra, against Simpson, Winfrey, and Hale & Eads, setting forth the facts substantially as stated in the opinion in that case, except that the sale of February, 1876, by Shannon to Minnis, was for $2,000, instead of $4,000, as in the report of the opinion. The conclusion of the petition and prayer in that case is as follows: "And plaintiffs charge that said defendant Winfrey is liable to the plaintiffs for the said amount for which he sold said real estate, as said trustee, to said Simpson, as aforesaid, and with interest thereon from date of sale, and for which they ask judgment; and said plaintiffs further charge that said defendant Simpson, by his said wrongful and fraudulent acts and conduct in the premises, and by his wrongful assumption of the control, title, and possession of said real estate, and the proceeds of the sale thereof, so realized by him as aforesaid, has made himself, and become, and now is, a trustee for these plaintiffs of the said proceeds of said sale of said real estate, to the extent and amount of said thousand-dollar Kendrick note, and the interest thereon, so realized and appropriated by him, as aforesaid, and for which they ask judgment against said defendant Simpson; and plaintiffs also ask that said defendants Hale & Eads may, by the order of the court, be directed and requested to deliver up to plaintiffs the aforesaid Kendrick note, so indorsed to them, and so deposited with the said Hale & Eads, for their benefit as aforesaid; and grant to said plaintiff such other and further relief in the premises as may be just and equitable." On the trial in the circuit court the court found for the defendants, and dismissed the the bill. On appeal to the supreme court, the judgment of the circuit court was reversed, and the cause remanded, "with directions to the circuit court to...