Damschroeder v. Thias

• Decision Date: 31 October 1872
• Citation: Damschroeder v. Thias, 51 Mo. 100 (Mo. 1872)
• Parties: FREDERICK W. DAMSCHROEDER, Defendant in Error, v. FRANCIS THIAS, Plaintiff in Error.
• Court: Missouri Supreme Court

51 Mo. 100

FREDERICK W. DAMSCHROEDER, Defendant in Error,

v.FRANCIS THIAS, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to St. Louis Circuit Court.

Lubke & Player, for plaintiff in error.

W. C. Jones and J. D. Johnson, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in equity for an injunction to restrain the plaintiff in error from prosecuting a suit for rent and possession against the defendant in error, and from collecting rent of defendant in error for the real estate in controversy.From the petition and answer it appears that Damschroeder on the 8th day of March. 1859, acquired the fee-simple title to a lot of ground situated on Eleventh street, in the city of St. Louis; that afterwards on the 10th of June, 1859, he executed and delivered to Thias, the plaintiff in error, a deed of trust upon this lot of ground, securing to him the payment of four notes, amounting in the aggregate to $2,040, the last maturing one of these notes being for $1,785, and being payable two years after the date of the deed of trust; that one August Reipschlaeger, the then business partner of Thias, was the trustee in this deed of trust, and by the deed of trust was given power to sell at auction the lot of ground, upon due advertisement in default of the payment of the notes.On the 15th of May, 1862, Reipschlaeger advertised the property for sale to pay the note for $1,785, which was then past due and unpaid, and on the 15th of July, 1862, he made the sale and Thias, the plaintiff in error, became the purchaser of it at the sum of $1,700, and the trustee conveyed the lot to him in fee simple.The petition then alleges that on the 15th day of July, 1862, before the trustee's sale had taken place, a contract and agreement was entered into between Damschroeder and Thias, in the presence of Reipschlaeger and others to the effect that no sale should be made under the deed of trust if Damschroeder would pay to certain parties named Brotherton & Sturgeon $500, and would also pay $85 on account of the note held by Thias; and that thereupon Thias agreed to extend the payment of the remaining $1,700 as long as the plaintiff should continue to pay interest thereon; that notwithstanding this agreement, and in violation thereof, and in the absence of the defendant in error, and while he was thrown of his guard, the plaintiff in error, Thias, procured the sale to be made by which he acquired title to the lot of ground.It is further averred in the usual terms that this conduct of the plaintiff in error was fraudulent, and intended to cheat defendant in error out of the property, which the petition claims to have been worth fully $5,000.The petition then alleges that after the sale the plaintiff in error presented to the defendant in error a claim for rent for the premises, and that defendant in error then attorned to plaintiff in error, as his tenant of said lot, upon plaintiff--in--error's representation that he had caused the property to be sold only for the purpose of settling all questions or disputes as to the title of the property, and that he, the plaintiff in error, did not wish to retain it, but would reconvey it to defendant in error as soon as plaintiff in error was paid by way of rent the full amount of his claim and interest; that in consequence of this representation, which it is not stated was in writing, defendant in error has paid to plaintiff in error, at various times, rents exceeding the sum of $3,194, which is in excess of plaintiff in error's claim.All of the material averments in the bill were denied in the answer.

The petition further charges, and the answer admits, that on the 1st of April, 1871, defendant in error filed in the St. Louis Circuit Court, against plaintiff in error, a petition in equity to set aside the sale of said property to plaintiff in error, on the grounds set forth in the petition, and for other reasons not in the petition in this case specified, for a decree vesting the title in the plaintiff therein, and for an account, and alleges that this suit is pending and undetermined; that after the filing of said petition, and on the 4th of April, 1871, plaintiff in error filed with a justice of the peace of St. Louis county an affidavit for a landlord's summons, seeking to recover $40 rent for said premises for the month of March, 1871, and the possession of said premises should the defendant in error fail to pay his rent before judgment.The petition also states that inasmuch as defendant in error could not set up his equitable claim to said property in the suit before the justice of the peace, he was remediless, and unless plaintiff in error was restrained from prosecuting that suit, great and irreparable damage would be done to him.

There is no allegation in the petition of insolvency on the part of the plaintiff in error.

A temporary injunction was granted when the petition was filed, but when the answer came in, on motion of the plaintiff in error, it was dissolved by the court at Special Term.The cause was then taken to the General Term, where the ruling of the court at Special Term was reversed, and the temporary injunction reinstated.The case now comes here by writ of error, to reverse the decision of the General Term and affirm the ruling of the Special Term.Three grounds are urged in this court to procure a reversal: first, that the contract between the parties, if any, being merely verbal, was void by the statute of frauds; secondly, that the statute of limitations constituted a good defense; and thirdly, that...