Claybrook v. Saulsberry

• Citation: 204 S.W. 60
• Decision Date: 20 May 1918
• Docket Number: No. 12613.,12613.
• Parties: CLAYBROOK v. SAULSBERRY et al.
• Court: Court of Appeal of Missouri (US)

204 S.W. 60

CLAYBROOK v. SAULSBERRY et al.

No. 12613.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

"Not to be officially published."

Action by C. E. Claybrook against D. L. Saulsberry and others. Judgment for defendants canceling a note, and plaintiff appeals. Judgment affirmed.

Wattenbarger & Payne, of Milan, for appellant. D. M. Wilson, of Milan, for respondents.

ELLISON, P. J.

Defendant bought a farm of plaintiff, and as part of the purchase money he and his wife gave him a note for $1,950 and deed of trust on the farm to secure it. At this time there was a prior deed of trust on the place. Some months after defendant's purchase he sold it to one Miller, subject to both deeds of trust, and shortly afterwards Miller sold it to one Edwards. The latter did not pay the interest on defendant's note to plaintiff, and there being a provision in, the deed of trust that default in interest matured the note, plaintiff had the land sold under the deed of trust and became the purchaser thereof for $75; that being the only bid. A few months after this purchase by plaintiff, he sold the farm to an innocent purchaser. He then brought this action against defendant on the note which, with interest, amounted to $2,137.44, after entering a credit of the net money arising under the deed of trust sale. The farm was worth more than the incumbrances including plaintiff's. Defendant in answer to plaintiff's petition set up certain fraudulent acts and conduct on plaintiff's part in relation to the sale under the deed of trust that enabled plaintiff to purchase the land at a nominal sum and then dispose of it to au innocent purchaser; so that, unless relieved in equity, he (defendant) will be compelled to the purchase money to plaintiff and yet the latter get the farm. Judgment in the trial court was for defendant, canceling the note.

The fraud charged was shown to be that plaintiff came to defendant's home, stayed to dinner, and during his stay informed defendant that Edwards had not paid the interest on the note (now in suit), and that he would have to advertise the farm under the deed of trust, but that defendant need not concern himself about the matter as the farm was worth the money, and that he knew of two parties that would bid "all or more than is against the land," adding, "don't you pay any attention to it; you will not be hurt any by the sale."

The trial court was better situated than are we to test the evidence, and while it is our duty, treating the case as one converted into equity by the answer, to try the case anew, we will naturally defer to that court conclusion on the facts. Treating the evidence for defendant as truly showing the representations made by plaintiff as to the sale under the deed of trust, we think under authority of Alfred v. Pleasant (Sup.) 175 S. W. 891, a case was made for defendant sufficient to support an action to set...