Bragg v. Ross

• Decision Date: 16 April 1942
• Docket Number: 37863
• Parties: Maude Bragg, Plaintiff-Appellant, v. Charles G. Ross, Mary Tipton Ross, Maggie Allman, Hattie Lovelace, Eunice Oliver, Beatrice Jackson, Mary Simms Muzzell, Walter Bragg, Glasgow Bragg and James M. Reeves, Trustee, Defendants, Charles G. Ross and Mary Tipton Ross, (sole) Respondents
• Court: Missouri Supreme Court

162 S.W.2d 263

349 Mo. 511

Maude Bragg, Plaintiff-Appellant, v. Charles G. Ross, Mary Tipton Ross, Maggie Allman, Hattie Lovelace, Eunice Oliver, Beatrice Jackson, Mary Simms Muzzell, Walter Bragg, Glasgow Bragg and James M. Reeves, Trustee, Defendants, Charles G. Ross and Mary Tipton Ross, (sole) Respondents

No. 37863

Supreme Court of Missouri

April 16, 1942

Rehearing Denied June 3, 1942.

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Reversed and remanded (with directions).

Von Mayes and N. C. Hawkins for appellant.

(1) Plaintiff-appellant, holding letters of no administration upon the estate of her deceased husband, C. E. Bragg, was and is entitled to sue for and collect from defendants, whatever was due from them to said estate, and also whatever was due her, in her own right, for dower or otherwise, as the widow of C. E. Bragg. This was held on the former appeal and is the law on this appeal. Bragg v. Ross, 139 S.W.2d 491. (2) When the granting of the specific relief prayed for is not deemed the most appropriate courts of equity, under a prayer for general relief, have gone so far as to award a money judgment for damages, in lieu of other relief or equitable relief. 21 C. J., p. 679, sec. 858 B; Holland v. Anderson, 38 Mo. 58; McQuitty v. Steckdaub, 190 S.W. 570; McLure v. Bank of Com., 252 Mo. 510 160 S.W. 1005; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Nodaway County v. Alumbaugh, 153 S.W.2d 74 (6). (3) Mr. Bragg and plaintiff had a vendors' lien on the four-fifths interests, for the amounts he agreed but failed to pay. Tomlinson v. Givens, 144 Mo. 15; Mollett v. Beckman, 78 S.W.2d 886; Causer v Wilmoth, 142 S.W.2d 777; Sec. 3448, R. S. 1939. (4) In 1930, prior to the foreclosure, February 3, 1932, Mr. Bragg became a paralytic and from and after that time he was physically and mentally infirm, and for this reason acquiescence, estoppel or laches should not be applied to him. Tokas v. Workmen's Com., 346 Mo. 100, 139 S.W.2d 978, 984. (5) Defendants are not injured, prejudiced or put to any disadvantage. Therefore, laches, estoppel etc., do not apply. Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; Battels v. Stalling, 346 Mo. 450, 142 S.W.2d 9; Collins v. Lindsay, 25 S.W.2d l. c. 89. (6) Laches must have some natural justice back of it, must be affirmatively and properly pleaded, and must be clearly and satisfactorily established, that is, it must be shown that it is necessary to apply laches to prevent an unjust result and to obtain justice. Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 655; Bickel v. Argyle, 343 Mo. 456, 121 S.W.2d 803; State ex rel. Breit v. Shain, 342 Mo. 1148, 119 S.W.2d 758; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Grafeman Dairy Co. v. Bank, 315 Mo. 849, 288 S.W. 466; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Needham v. Caldwell, 154 S.W.2d 535 (7); Hamilton v. Northeast Mut. Ins. Co., 116 S.W.2d 159; Nat'l Match Co. v. Empire Storage & Ice Co., 227 Mo.App. 1115, 58 S.W.2d 777; Balding v. Farm Home, etc., 131 S.W.2d 57 (5). (7) Acquiescence, waiver, estoppel and laches are all alike in this, that before they can be properly predicated against a party "it must unequivocally appear" "that the party acted with full knowledge of all the material facts and circumstances and with a full knowledge of his legal rights, and that the position of the party invoking the doctrine would be changed if the matter was opened up." Garesche v. Leving Inv. Co., 146 Mo. 436. (8) Defendants did not allege, nor was there any evidence to show that because of delay the conditions had become such as to practically preclude the court from arriving at a safe conclusion, therefore, laches do not apply. St. Louis Union Trust Co. v. Busch, 145 S.W.2d 426 (7). (9) Prior to, at and after the foreclosure there were several different kinds of fiduciary, confidential and trust relations existing between Mr. Bragg and Mr. Ross. These not only preclude the application of acquiescence, estoppel and laches but serve also to show a right to redeem the one-fifth interest and obtain the rents and profits from it. They were tenants in common. That is a fiduciary relation and precludes a cotenant or his spouse (in this case Mrs. Ross) from obtaining any advantage of the other cotenant. Kohle v. Hobson, 215 Mo. 213; Brown v. Howard, 264 Mo. 466. (10) They were partners in farming the land. Partnership is a fiduciary relation which exacts the "finest loyalty." Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 590. (11) They were and for years had been intimate friends which made Mr. Ross the same as an appointed trustee or agent. Turner v. Turner, 44 Mo. 538. (12) The deed to Mr. Ross required him to pay for Mr. Bragg and plaintiff and to their creditors the amount agreed upon as the purchase price of the 4/5ths interests therein conveyed, the sums specified on the lien debts, including $ 6000 on this particular lien debt. That deed made Mr. Ross a trustee, as to such matters and the land. Turner v. Butler, 126 Mo. 131, 137. (13) After Mr. Bragg became afflicted with paralysis, he was by his affliction forced to and did, entrust everything in connection with the land and the farm to Mr. Ross, and Mr. Ross accepted the responsibility and the relation such responsibility cast upon him. He had the "dominating" controlling interest in the land (4/5ths) and domination of influence. That made him a fiduciary. Dimity v. Dimity, 62 S.W.2d 859, 861; Ryan v. Ryan, 174 Mo. 279; Selle v. Wrigley, 116 S.W.2d 221; Kilka v. Real Estate Co., 150 S.W.2d 18, 24 (4); State ex rel. Lee v. Sartorious, 344 Mo. 912, 918, 130 S.W.2d 547. (14) The relation of principal and surety existed. Greer v. Orchard, 175 Mo.App. 494, 498; Smith v. Davis, 90 Mo.App. 533, 539; Needham v. Caldwell, 154 S.W.2d 535. (15) Also Mr. Bragg and plaintiff had a vendors' lien upon the 4/5ths interests, for the amounts Mr. Ross had assumed and agreed, but had failed, to pay. Mr. Ross did not own the 4/5ths or have more than an equitable title thereto until he paid as agreed. Waugh v. Williams, 342 Mo. 260, 270; Young v. Blocks, 146 S.W.2d 902; Mollett v. Beckman, 78 S.W.2d 886; Causer v. Wilmoth, 142 S.W.2d 777. (16) By reasons of the aforesaid relations, conditions, facts and circumstances, Mr. Ross was a trustee, within the meaning of "trustee" as defined by this court. Dibert v. D'Arcy, 248 Mo. 617-647; State ex rel. Lee v. Sartorious, 344 Mo. 912, 918; Turner v. Butler, 126 Mo. 131, 137; Conn. Mut. Ins. Co. v. Smith, 117 Mo. 295. (17) Mrs. Ross held whatever title, if any, that was conveyed by the trustee's deed to her, in a resulting trust. Black v. Banks, 327 Mo. 341, 349; Mahen v. Tavern Rock, 327 Mo. 391, 396; Luker v. Moffett, 327 Mo. 929, 936, 48 S.W.2d 1039. (18) The above facts made and showed her to be a holder in resulting trust. Sec. 3495, R. S. 1939; Condit v. Maxwell, 142 Mo. 274; Woodard v. Cohron, 137 S.W.2d 498; Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392; Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 9; Bryan v. McCaskill, 284 Mo. 584, 225 S.W. 687. (19) A party cannot acquire title by buying it at a sale made for his own debts. Wicoff v. Moore, 257 S.W. 474. (20) It was thought necessary that the property go through the form of selling to some friendly third party. But the law abhors subterfuges. "The law is not to be hoodwinked by colorable pretenses; it looks at the truth and reality through whatever disguise it may assume." Door Co. v. Fuelle, 215 Mo. 421, 453. (21) If the debt secured by a deed of trust be paid before a sale, a sale is void. If the debt be paid and accepted, after the sale, but before the deed is made, the sale is waived, abandoned and renounced, and a deed made after that is void. Jackson v. Johnson, 248 Mo. 680; Hoffman v. Hogan, 345 Mo. 903. (22) The court erred in refusing to allow plaintiff to redeem the 1/5th interest, or awarding her other adequate and appropriate relief, under her prayer for general relief. Howard v. Scott, 255 Mo. 685; Runnells v. Lasswell, 219 S.W. 980; Agille v. Sarpy & Grimsley, 1 Mo. 389; Thomas, Trustee, v. Zumbalen, 43 Mo. 471; Condit v. Maxwell, 142 Mo. 266; Perry v. Strawbridge, 209 Mo. 621; Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480. (23) This court has held that it was "a fraudulent trick or contrivance" for a party to suffer a breach of contract under which he is obligated to pay something and by the breach divest himself of any interest and then attempt to acquire a new interest discharged of what he owed. Thomas, Trustee, v. Zumbalen, 43 Mo. 471, 479; Wicoff v. Moore, 257 S.W. 474; Fountain v. Starbuck, 209 S.W. 900; Bower v. Daniel, 198 Mo. 289. (24) If the written instruments fell short of disclosing in detail the object and purpose of the trust the same could be supplied by reasonable presumption or oral evidence, and the acts and relations of the parties. Woodard v. Cohron, 137 S.W.2d 498. (25) There was no contradiction in the evidence or impeaching circumstances. Therefore, the custom of deferring to the chancellor has no application in this case. Plemmons v. Pemberton, 346 Mo. 45, 56, 139 S.W.2d 910. (26) The rents and profits shown by the evidence cover a period after the death of Mr. Bragg, and therefore, plaintiff and her husband's heirs (defendants) were co-tenants with Mr. and Mrs. Ross and have a lien on the undivided four-fifths for their share of the rents and profits on the one-fifth. Beck v. Kellmeyer, 42 Mo.App. 563. (27) Appellant has the right to redeem the one-fifth interest for herself and heirs. 42 C. J., p. 400, sec. 2182. (28) Plaintiff in equity is entitled to be allowed her statutory allowances out of the rents and profits on the one-fifth interest exclusive of the rents on her dower. Secs. 105, 106, R. S. 1939; Mahoney v. Nevins, 190 Mo. 360, 88 S.W. 731. (2...