Chesley v. Chesley

• Decision Date: 31 March 1872
• Citation: 49 Mo. 540
• Parties: ELIZA A. CHESLEY, BY HER NEXT FRIEND JOHN R. SELF, Plaintiff in Error, v. JOHN B. CHESLEY, GEORGE A. HOWES AND AMOS J. STILLWELL, Defendants in Error.
• Court: Missouri Supreme Court

49 Mo. 540

ELIZA A. CHESLEY, BY HER NEXT FRIEND JOHN R. SELF, Plaintiff in Error,

v.JOHN B. CHESLEY, GEORGE A. HOWES AND AMOS J. STILLWELL, Defendants in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to Hannibal Court of Common Pleas.

T. H. Bacon, for plaintiff in error.

I. The creditor, after volunteering relief on professed motives of personal friendship, and thereby evoking from plaintiff an advisory confidence, could not employ such relation to plaintiff's injury. (1 Sto. Eq. Jur. 317, § 329; Smith v. Ray, 7 H. L. C. 779-80; Foote v. Foote, 58 Barb. 258.)

II. The creditor, in response to plaintiff's request that he would bid in the property to save it from sacrifice, having given assurance that he would do what was right about it, and having paralyzed plaintiff's efforts to redeem, by assuring her trustee that the property should be safe in his hands, cannot deny the redemption shortly thereafter offered. (Medsker v. Swaney, 45 Mo. 273; Marlatt v. Warwick, 3 Green, 108; Parker v. Moody, 58 Me. 70, 72.)

James Carr, for defendants in error.

WAGNER, Judge, delivered the opinion of the court.

The suit was brought to set aside a sale of real property made by a trustee acting under a deed of trust, and asking to redeem, etc. The property sold consisted of a lot of ground in Hannibal, and there were three distinct tenements upon it, situated some distance separate and apart from each other. Stillwell was the beneficiary in the deed and the purchaser at the sale, and the case clearly shows that the property was bought in at an under-value.

The charges of fraud made in the bill are hardly sustained by the evidence. It is unquestionably true that Stillwell, prior to the sale, did make certain representations to plaintiff which led her to believe that he was acting as her friend, and that in the event that he purchased the property she would be afforded an opportunity to redeem. But, taking all the evidence together, it is doubtful whether she was so lulled into security in consequence of these representations as to entitle her to relief were the sale in other respects entirely fair and unexceptionable. The evidence establishes most conclusively that the property was easily susceptible of division, and that it would have sold for a great deal more had it been divided and set up in three several parcels. The houses were several feet apart, and the lot ran back a good distance. The grantor in the deed was not consulted as to how the lot should be sold; but it seems that...