Gillespie v. Stone

• Decision Date: 31 October 1879
• Citation: 70 Mo. 505
• Parties: GILLESPIE v. STONE, Appellant.
• Court: Missouri Supreme Court

70 Mo. 505

GILLESPIE

v.STONE, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Sullivan Circuit Court.--HON. JOHN W. HENRY, Judge.

AFFIRMED.

Chas. A. Winslow for appellant.

1. The evidence is utterly insufficient to sustain the judgment. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73.

2. The agreement, if any was made, was not in writing, and was, therefore, void under the statute of frauds. There is no evidence of part performance in the case. Stone took possession immediately after the sale, and has remained in ever since. Gillespie paid no money, made no improvements, did not have the possession--in fact, did nothing. The action is for specific performance. Chambers v. Lecompte, 9 Mo. 566; Bowles v. Wathan, 54 Mo. 261; Sitton v. Shipp, 65 Mo. 297.

3. The right of action, if any, is barred by limitation This suit was commenced ten years and six months after the sale and alleged agreement. Supposing the agreement to be made out by the evidence, the time of the performance is fixed at three months. McDuff, plaintiff's witness, fixes that time, and plaintiff should stand by his statement. This would start the statute in January, 1864, ten years and three months before the suit. Tatum v. Holliday, 59 Mo. 422; Hunter v. Hunter, 50 Mo. 445; Thomas v. Mathews, 51 Mo. 107; Rogers v. Brown, 61 Mo. 187.

A. W. Mullins for respondent.

1. It is well settled that in cases where property is acquired under such circumstances as are shown in this case, courts will relieve against the fraud. Rose v. Bates, 12 Mo. 30; Slowey v. McMurray, 27 Mo. 113; Damschroeder v. Thias, 51 Mo. 100; Bedford v. Moore, 54 Mo. 448; McNew v. Booth, 42 Mo. 189; Estill v. Miller, 3 Bibb (Ky.) 177; Brown v. Lynch, 1 Paige 147.

2. The statute of frauds has no application in this case. Grove's Heirs v. Fulsome, 16 Mo. 549; Rose v. Bates, 12 Mo. 51; Slowey v. McMurray, 27 Mo. 119; Damschroeder v. Thias, 51 Mo. 103: Peacock v. Nelson, 50 Mo. 261; Hill on Trustees, marg. p. 144, n.

3. The defendant having acquired the property in such manner and under such circumstances as to make him a trustee, mere lapse of time, pleaded by defendant, cannot relieve him. McNew v. Booth, 42 Mo. 193; Hill on Trustees, marg. p. 60.

NAPTON, J.

This was a petition filed in March, 1874, to transfer to the plaintiff a title acquired in October, 1863, by the defendant to two lots in the town of Milan, in Sullivan county, on the ground of an implied trust growing out of a breach of an agreement made previous to the sale. The plaintiff was security on a note given to defendant in 1861, for $197.29. This note was sued on, and in March, 1863, a judgment was rendered against plaintiff for $235.30, and $13.70 for costs, and the plaintiff, the petition alleged, being unable to pay, requested the defendant, who was his friend, to buy at the sale, with the understanding that he should bid enough to pay off the judgment, interest and costs, and hold the title as security for this sum, and whenever the plaintiff, or any one else for him, should repay the sum bid with interest, it should be reconveyed to plaintiff or his assignee. It was further alleged that in consequence of this arrangement being communicated to persons who were present at the sale, there were no other bids, and competition was thus prevented, and the lots were bought by defendant for $272, when they were in fact worth $1,000. The circuit court made a decree in conformity with the prayer of the bill. The objections to this decree made in this court, are: 1st, That the evidence was insufficient; 2nd, That the statute of limitations was a bar to the action; and, 3rd, That the statute of frauds prohibited any regard being paid to the agreement, which was merely verbal.

1. STATUTE OF LIMITATIONS: statute of frauds: trusts.

We do not appreciate the force of the last two points. The statute of frauds has no application to such cases.

In regard to the statute of limitations, the case of Rogers v. Brown, 61 Mo. 187, which has been cited in support of this position, does not apply to this case. That was a case of a deed in fraud of creditors, fraudulent in its inception, and the bar of ten years was held to run from the date of filing the deed for record. It is not pretended that the deed to Stone was fraudulent; on the contrary, the purchase by Stone at the sheriff's sale and the deed he received for the lots were, as the plaintiff avers, made at his request. Whether there was such a lapse of time, after the sale and before any offer to redeem as courts of equity will regard as a bar, will be considered in our examination of the first point.

2. ACTION TO ENFORCE AGREEMENT TO PERMIT REDEMPTION.

We deem it unnecessary to refer to authorities, either in the prior decisions of this court or elsewhere, to establish the general proposition that implied trusts, such as this bill sets up, must be very clearly and satisfactorily proved. Verbal arrangements are so easily misunderstood by the one party or the other, as the evidence in this case will show, that courts must exercise great caution in basing a decree on such agreements without the most satisfactory proofs. There are four points in this case, and in all similar ones, upon which the evidence should be satisfactory. First, The existence of the agreement asserted in the petition. Second, That through the contrivance or with the consent of the purchaser, such agreement deterred others from bidding. Third, As explanatory of the first two points, the actual market value of the property at the date of the sale. Fourth, The date of the offer to redeem. As the principal witnesses in this case are the plaintiff and defendant, we copy their testimony.

The plaintiff, Gillespie, testified: I was security to the defendant, Martin Stone, on a note given by Owen Wilson. Just after I left here, at the beginning of the war, Stone began a suit on the note against me by attachment, and attached the property here sued for. I came back before judgment was rendered, but did not defend the suit. I was here when the property was sold, and went to Stone and told him I did not have the money to pay him, and that I wanted him to bid in the property and hold it until I could pay him his money and pay the debt, and that if I never got the money he could keep it. He agreed to it and bought the property, and under that agreement I kept others from bidding. Others told me that they would bid, but that I kept them from it. I offered to settle the matter with him, and he talked in different ways about it. In 1868, I told Stone I wanted to fix up the matter and try and pay him, and he told me I had no right there. In 1871, I offered to arbitrate the matter, but Stone refused, and I brought suit. The property was worth from $700 to $1,000 at the time of the sale. The rent of the property was worth $60 a year. On cross-examination, the said witness stated: There was no one present when Stone and I made the agreement. I don't think there was any judgment against the property except Stone's. I have never tendered Stone any money. I think it was in 1867 that I first spoke to Stone about the matter. There were five lots sold at the sale, and Stone bought three. I recollect of Stone asking me, when I spoke to him once about the property, whether I would have wanted to pay him back his money and take the property if the house had been burned down, but I don't recollect what answer I made. I first learned of the attachment against this property in 1863, March, I think. I have lived in this county ever since. I delayed in this matter because I did not like to sue a man whom I had so much confidence in as I once had in Stone. On re-examination, plaintiff further testified: I being short of money was a reason for letting this matter go on.

The defendant, Stone, testified: There was no agreement between Gillespie and me for Gillespie to have the property back, and no arrangement made to keep any one else from bidding. Gillespie told me that he could not raise the money, and that if I would give the amount of my debt for the property he would not bother about it; that he would rather I would have the property than any one else. The judgment under which the sale was made was rendered in this court in March, 1863, and the sale was at the October term of the same year. Dr. Sands had a judgment which was also a lien on this property, and I would not agree to give my debt for the property unless Gillespie would arrange to have the lien of Dr. Sands' judgment discharged. I did not say to McDuff that I was going to give Gillespie three months to redeem the property in. I had no talk with him about it before the sale. After the sale, McDuff, who was then drinking very hard, spoke to me about buying the property, and I said to him that Gillespie and I had been very good friends and that I would let him have the property cheaper than any other man. The property was not worth over $200 or $300 at the time of the sale. Gillespie never spoke to me about the property till a short time before this suit was brought; he said he would like to pay me my money back and get a deed to the property. I told him that I thought the property was mine and that he had no interest in it; that I had paid out considerable money for taxes and repairs and improvements; there was considerable talk between us and I asked him: Suppose the property had burned down during the war, would you have paid me back my money? and he said that would be another question. Stone further testified that Gillespie told him that he, Gillespie, could put him, Stone, to trouble about the title, but if Stone would make it bring the debt, the matter would be all right.

As it is obvious that upon this testimony the plaintiff failed to establish his case upon any of the four points involved, to which we have referred, since the two witnesses contradict each other upon each of...