Feis v. Rector

• Decision Date: 14 March 1922
• Citation: 239 S.W. 515
• Parties: FEIS v. RECTOR.
• Court: Missouri Supreme Court

239 S.W. 515

FEIS v. RECTOR.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Louis Feis against John T. Rector. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Dan V.. Herider, of Slater, and Robert M. Reynolds, of Marshall, for appellant.

Storts & Rich, of Slater, and Alf F. Rector, of Marshall, for respondent.

GRAVES, J.

The petition in this case is in two parts, each of which is based upon the following contract, which was introduced in evidence:

                        "Slater, Mo., May 15, 1901
                

"Whereas, the sheriff of Saline county, will on Friday, May 17, 1901, sell at public vendue to the highest bidder for cash, the interest of Henry and Mary Fogus in and to certain real estate, situated in the town of Slater, Mo., to satisfy judgment against said parties in favor of Louis Feis. It is agreed between J. T. Rector, and said Feis that said Rector shall bid for said interest an amt. which in his judgment he thinks it worth. Said Feis agrees to pay all costs attached to the bringing of suit and sheriff and clerk costs, and costs of advertisement in case the property is knocked off to said Rector, and is sold or transferred by him to another party, he is out of the amt. for which he sells said property, pay to said Feis first, the amt. paid by said Feis as costs, then, divide the remainder between himself and said Feis. "In case the property is bought by some other party at sheriff sale, all over and above the costs in said suit is to be equally divided between said Feis and Rector.

                                 "[Signed] John T. Rector
                                           "Louis Feis."
                

The petition avers that there were two tracts or parcels of real estate bought in by Rector, under this agreement. The first part of the petition avers that Rector sold one of the properties for the sum of $250, but falsely represented to plaintiff that he only sold it for $150, and settled with plaintiff on that basis. This part seeks to enforce this trust agreement for plaintiff's portion of the difference. This difference Is alleged to be $148.85 due to plaintiff, and interest from March, 1901, the date of sale.

The second portion of the petition avers that said Rector still holds title to the other tract of land (115 feet of the south end of lot 19, block 14, North Extension to town of Slater, Mo.), and asks for an accounting as to rents and profits and improvements, and that the court declare that Rector holds the title in trust for the two of them; i. e., plaintiff and defendant.

There is the allegation that at the sale under the execution both properties were bought in by Rector, under the contract aforesaid, and that the sale aforesaid was made as to the one, but no sale as to the other. It is further alleged that for some years defendant had been in the possession of the tract which we have described above, and had made improvements thereon, and that there had been no accounting between them, although demand had been made by plaintiff thereof.

The answer consists of a general denial, an admission, and other pleas. Defendant admits that he bought in both pieces of said property at the sheriff's sale for the sum of $50, and that the plaintiff paid the amount of his said bid. He avers that he paid to plaintiff—

"his share and portion of said $250, according to the terms of the contract and agreement between plaintiff and defendant, reserving the sum of $25 to pay the costs of collecting or contesting his right to collect the rents on said real estate, after said alleged sale."

The Feis judgment was one obtained in an attachment suit as against nonresidents. The defendants in such attachment suit were Henry and Mary Fogus. The defendant then avers that the judgment, sale, and deed in the attachment proceedings were each and all void, and passed no title to him, or to him as trustee for himself and plaintiff. Defendant also pleads that at the time of said sale Henry and Mary Fogus had no title to said property, but had previously conveyed their title to one Archibald Dacy. He also pleads outstanding deeds of trust against the property. He avers that as to the property sold, he only sold and conveyed by quitclaim deed. There is than found a plea of the statute of limitations (10-year statute) as to the $250 received for the property sold, as aforesaid.

A further averment in the answer is to the effect that Archibald Dacy, Ada Dacy (later Ada Dacy Wood), and one G. N. Zora Fogus were in the possession of the property from the 10th day of November, 1900, to February 24, 1910, and collected the rents and claimed the property adversely to defendant. Defendant then avers that he became the absolute owner of the property in May, 1912, by purchase from Wm. E. Rector, who obtained title from Ada Dacy Wood and G. N. Zora Fogus. The latter being a minor, the deed was procured for her alleged one-fifth interest through a probate court proceeding and a guardian's deed thereunder.

There is then a plea of estoppel in pais, the particulars of which can best he stated in connection with the points made. The specific denial is to the effect that defendant denies owing plaintiff any sum on the land sold and conveyed, and denies that he now holds the property in trust for himself and plaintiff.

We find no reply in the record, but the trial proceeded as if one had been filed. The court found the issues for the defendant, and from a judgment to that effect the plaintiff has appealed. The court sustained a demurrer to the evidence, and entered judgment for defendant thereafter. We have therefore only the evidence in behalf of the plaintiff and the answer and admissions for consideration.

I. The record shows that a jury was waived, and this case tried before the court. The case is one in equity, seeking to have the court declare a trust growing (as plaintiff says) out of a contract between them, and a denial by defendant that plaintiff had any interest in the property. If the contract in evidence does not itself create a trust in law, the subsequent action of defendant in denying that plaintiff had no interest, and averring that defendant was the sole owner, would supplement the contract, and in law be a resulting trust. If under a written contract one agrees with another to buy in lands, and upon a later sale thereof divide the profits, such person cannot later refuse to sell the lands, and claim absolute ownership therein, without leaving some equitable action in the other party. In this case the whole amount paid for the title to both tracts at the sheriff's sale was $50, and this paid by plaintiff and not by defendant. But for the purpose we have in mind it will suffice to say that the action is one in equity to enforce an alleged trust. Not only does the plaintiff's petition place this case upon the equity side of the court, but the plea of estoppel in pais in the answer places it there by a very recent ruling. Schneider v. Schneider, 284 Mo. 314, 224 S. W. 1.

The giving of the demurrer to the evidence amounted to an announcement that no equity was shown. We shall treat the case as in equity. There was but one witness used, and that was the plaintiff, as a witness for himself. The case as now before us must be measured by plaintiff's evidence, the contract, and the admissions (against interest) of the defendant in the answer. We state this, because the statement in the brief of defendant states so much that is not before us.

There is a charge in the answer that no title passed to Rector at the sheriff's sale, because no notice was given to the tenants of the property. Plaintiff admits that there were tenants, but there is no proof that there was no notice to them in the attachment proceeding, further than statements in brief. So too as to alleged mortgages, and other things. To get the facts to be considered upon this hearing we shall confine the case to the things shown by the evidence, and the admissions in the answer, which are against the interest of defendant.

II. There is nothing in the record to indicate upon what theory the court sustained the demurrer to the evidence, but it must have been on (1) lathes, (2) estoppel in pais, or (3) limitations, and those things, or some of them, must appear from the evidence of the plaintiff.

The important matter in the case is the land, which was not disposed of by Rector after the sheriff's deed to him. The answer admits the purchase of the two properties at the sheriff's sale under the contract set out in our statement. This was in 1901, May 17th. Rector, in the answer, recognizes the contract and claims to have fully settled with plaintiff, when by quitclaim deed he conveyed one of the properties. In the record is the receipt of Rector for $54 for the "costs of sheriff and recording deed to Fogus property." In the examination in chief of plaintiff the following appears:

"Q. Well, you referred to it as `the other' place. A. Well, I don't know what the lot is; it is the residence now, as well as I remember.

"Q. You say he afterwards bought that in; what do you mean by that? A. Bought from the Fogus heirs.

"Q. You mean he bought an outstanding title? A. Bought an oustanding title.

"Q. Did he consult you about that, or anything? A. Not at all.

"Q. Did he ever ask you to put up any money? A. No, sir.

"Q. Did you ever tell him to go and buy it? A. No, sir; but I went to meet him on the proposition, to have a settlement of some kind, and he never would meet me; didn't have time, too busy to even discuss the matter with me. I even went as far as sending Mr. Burks— Judge Burks to Mr. Rector in this matter to obtain a settlement peaceably, and he had no time for it.

"Q. On these occasions when you would visit Mr. Rector, would you ask for a settlement of these matters? A. Yes, sir. The first matter had been settled, but after he bought the next property then I thought my interest...