Combs v. Goldsworthy

• Decision Date: 14 March 1892
• Citation: 109 Mo. 151,18 S.W. 1130
• Parties: COMBS v. GOLDSWORTHY et al.
• Court: Missouri Supreme Court

18 S.W. 1130

109 Mo. 151

COMBS v. GOLDSWORTHY et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1892.

LIMITATIONS — FORECLOSURE OF MORTGAGE — POSSESSION BY MORTGAGEE'S AGENT — FRAUD.

In an action to foreclose a mortgage, the evidence showed that plaintiff's intestate, who lived in Massachusetts, was the owner, in 1869, of certain land in Missouri; that he appointed defendant his agent to look after the land, and gave him a power of attorney to sell it; that defendant sold the land to T., who on July 15, 1870, executed a mortgage on the land to secure deferred payments, and on July 25, 1870, conveyed the land to defendant, subject to the mortgage; that interest was paid to deceased for but one year; that the mortgage was never returned to deceased after it was recorded; that defendant always held himself out to deceased as being true to the confidential relation as his agent, and never claimed any interest in the land; and that deceased never canceled defendant's power of attorney or learned of his unfaithfulness. Held, that though the notes, to secure which the mortgage was given, had been barred by the statute of limitations, the right of action on the mortgage was not barred, as the possession of the land by defendant was not adverse, as against deceased.

Appeal from circuit court, De Kalb county; O. M. SPENCER, Judge.

Action by A. W. Combs, as administrator of John Duff, deceased, against John E. Goldsworthy and others, to foreclose a mortgage. Judgment for defendant Goldsworthy. Plaintiff appeals. Reversed.

Jones & Jones, for appellant. S. H. Corn, for respondents.

BRACE, J.

This is an action to foreclose a mortgage on certain tracts of land in De Kalb county, described as containing 530½ acres, duly executed and acknowledged by the defendant W. H. Taylor, bearing date July 15, 1870, and filed for record in said county on the 25th of July, 1870, to secure the payment of two promissory notes, also executed by the said Taylor, dated June 13, 1870, each for the sum of $1,000, both payable to the said John Duff, — one, one year, and the other, two years, after date, — and both bearing interest from date at the rate of 10 per cent. per annum. It is alleged in the petition that the defendant Goldsworthy claims some interest in the lands under a quitclaim deed therefor from said Taylor, dated July 25, 1870, and recorded in said county on the 15th of June, 1871; and that defendant Mathew L. Wrigsley is in possession of the premises under said Goldsworthy; and that said notes were given in part payment of the purchase money for said land, and with interest thereon, except one year's interest on each of said notes remains unpaid; and prays that the land, or so much thereof as may be necessary to pay off and discharge the remainder of said notes and interest, be sold, and the proceeds applied to the payment thereof. The suit was instituted August 15, 1887. The defendant Goldsworthy alone answered the petition. His plea was payment and the statute of limitations, upon which issue was joined by reply. The case was submitted to the court on the evidence without any declarations of law, the issue found for the defendant, and from the judgment in his favor plaintiff appeals. It appears from the evidence that, in the year 1869, the said John Duff, who was a resident of Boston, Mass., was the owner of 25,000 or 30,000 acres of land in Missouri, including this land in De Kalb county; that Goldsworthy was a lawyer located and doing business at Cameron, Mo.; that on the 4th of November, 1869, he wrote a letter to Duff, informing him that his lands in De Kalb county were depreciating in value, because of neglect; that the timber was being cut off and hauled to town, and sold by trespassers; that tax-titles were being acquired and conveyed to some portion of it; and intimating that he was in danger of losing the title to some of his lands, unless his interests were protected, and suggesting that if he (Goldsworthy) had authority from him he would stop these inroads being made upon Duff's interests by a set of irresponsible rascals; and adds, "Should you desire to sell this land, or any portion of it, I would act as agent with your approval." By his letter of date 9th of November, 1869, Duff accepted Goldsworthy's proposition, appointed him his agent, and he immediately took charge of the lands as such; advised Duff that his lands were worth from $10 to $15 per acre; took measures to relieve the lands of tax liens, and to keep off trespassers. On the 25th of March, 1870, Goldsworthy wrote Duff that he thought the land could be sold for $4,000 or $5,000. On the 30th of March, Duff replied that he desired to sell, and requested Goldsworthy to get the best offer and terms he could. On the 11th of April, Goldsworthy wrote Duff that he was offered $4,000 for the land, one-half down, balance in two years, with 10 per cent. interest. On the 17th of May he called Duff's attention again to the offer by another letter of that date, stating that Perrine was the name of the man that made the offer. On the 4th of June, by his letter of that date, Duff instructed Goldsworthy to sell for $4,000 cash, if not all cash, on such terms as Goldsworthy thought advisable. On the 13th of June, Goldsworthy wrote Duff that he had sold to Perrine for $4,000, one-half cash, balance in one and two years, at 10 per cent. interest; and inclosed deed for Duff to execute and acknowledge, which he did, and returned same to Goldsworthy. On the 7th of July the latter wrote Duff that Perrine's wife would not sign the mortgage to secure the payment of the balance of the purchase money, and that Perrine had sold to W. H. Taylor, who desired a deed from Duff...