Clarkson v. Creely

• Decision Date: 31 March 1867
• Parties: MARGARET CLARKSON, AND ANN ELIZABETH, CLARA AND ROBERT CLARKSON, JR., BY MARGARET CLARKSON, THEIR NEXT FRIEND, Plaintiffs in Error, v. CHARLES CREELY AND THOMAS C. LUNEY, Defendants in Error.
• Court: Missouri Supreme Court

40 Mo. 114

MARGARET CLARKSON, AND ANN ELIZABETH, CLARA AND ROBERT CLARKSON, JR., BY MARGARET CLARKSON, THEIR NEXT FRIEND, Plaintiffs in Error,

v.CHARLES CREELY AND THOMAS C. LUNEY, Defendants in Error.

Supreme Court of Missouri.

March Term, 1867.

Error to St. Louis Land Court.

A. J. P. Garesche, for plaintiffs in error.

Glover & Shepley, for defendants in error.

FAGG, Judge, delivered the opinion of the court.

This case was before the court on an appeal from the St. Louis Land Court and determined at the March term, 1864--35 Mo. 95. Judgment in favor of the defendants had been entered up in the Land Court upon issue joined in demurrer, and it was reversed and remanded for further trial. The defendants answered and a trial was then had upon the merits. The judgment being for the defendants, it is again brought to this court by writ of error. In considering the questions presented by the petition, the facts being taken to be true, it was settled that the act of Luney “in proceeding to enforce the deed of trust without notice to Mrs. Clarkson of the acceptance or rejection of her offer, or of his intention to cause the property to be sold under the deed of trust, was a fraud upon her which authorizes a court of equity to interfere and permit her to redeem the land. Of course, the only question presented now is whether the facts proved on the trial are sufficient to support the allegations in the petition.

A witness named Peter Foster was introduced in behalf of the plaintiffs, and all the facts proved are to be gathered from his testimony. No testimony was offered by the defendants. The case is very fully stated in the opinion of Judge Bates and need not be repeated here. Foster stated, that (to use his own language), “at the instance of Mrs. Clarkson, I went to see Luney about the note and deed of trust (the subject matter of this litigation); I understood from her that he was about to sell the property over her head, and that I should try to save her. I asked him about the matter, and he said that he did hold the note and that he wanted his money. I asked him how much it was, as I would raise the money to save the property to the widow, offering to pay part down and the balance within a week or ten days. He then answered me that he was about to make a trade; that if he did, he would want the whole money, and if not, he would not want any; that he could not positively tell for a week. I then agreed with him that he should let me know whether he wanted it or not, and if he did, I would see that he got it, as I would myself pay it to him; and he then agreed that he would do nothing under the deed of trust until he let me know. I then saw Mrs. Clarkson and told her of it.”

There could have been no pretense on the part of Luney that this was a mere intermeddling by Foster on his own account and to accomplish some purpose for his own benefit. He must have understood all this as coming directly from Mrs. Clarkson. The very circumstances of the case would have suggested such a thing if nothing at all had been said during that interview to convince him that such was the fact. At the instance of Mrs....