Hall v. Callahan

• Decision Date: 31 October 1877
• Citation: 66 Mo. 316
• Parties: HALL, Plaintiff in Error v. CALLAHAN et al.
• Court: Missouri Supreme Court

66 Mo. 316

HALL, Plaintiff in Error

v.CALLAHAN et al.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jackson Circuit Court.--HON. SAMUEL L. SAWYER, Judge.

In July, 1868, one Samuel W. Nutter, being then largely indebted to several parties, for an expressed consideration of $17,000, conveyed all his property, personal and real, including a tract of six hundred acres of land, to his sister, Lizzie A. Nutter, who afterwards intermarried with James M. Callahan. The deed was recorded about the day of its date. Several of Nutter's creditors brought suit against him by attachment, claiming that this conveyance was without consideration and fraudulent.

In October, 1868, Nutter departed this life, and one Chapman was appointed his administrator. The attachment suits were revived and proceeded to final judgments in favor of the respective plaintiffs. Nutter had been executor of his father's estate, and his said sister was one of the sureties on his bond. Suit was brought on this bond by the administrator de bonis non of Nutter, the elder, and resulted in a judgment for $2,000 against Chapman, as administrator, and Mrs. Callahan as surety. This judgment was a lien on the real estate of the latter. Suits were also brought against Mrs. Callahan by the widow and child of Nutter, attacking his deed to her. There being no personal assets, Chapman obtained an order from the probate court for the sale of the real estate which had belonged to his intestate, for the purpose of paying his debts. Under this order he offered for sale, at public outcry, the lands which had been conveyed by the intestate, by the supposed fraudulent deed.

At this sale five forty acre tracts were sold, four of them to one Jordan, and the fifth to plaintiff Hall. The proceeds of the sales, amounting to over $6,000, were used by the administrator in paying off the above mentioned judgments, and the other debts of the intestate.

Immediately after the administrator's sale, Mrs. Callahan, by a quit-claim deed, conveyed to Jordan, who was a nephew of her husband, all the lands she had acquired from her brother, including in the conveyance the forty acre tract purchased by plaintiff. The present suit was brought against Mrs. Callahan and her husband, and Jordan, to have this conveyance set aside as fraudulent, and to have the title to said forty acre tract declared to be vested in plaintiff, the plaintiff claiming that he had purchased said tract by the inducement, persuasion and encouragement of Mrs. Callahan and her husband, aided and abetted by and with the connivance and assent of Jordan.

The petition charged that the conveyance from Nutter to Mrs. Callahan was voluntary, and that she believed it was void as against his creditors; that her object in having a portion of the lands sold was to get them paid off, so as to secure her title to the remainder against attack, and also to relieve her own lands from the lien of the $2,000 judgment in favor of the administrator of the elder Nutter.

At the trial evidence was given on the part of the plaintiff tending to show that Chapman, being advised that he could not, as administrator, impeach the conveyance to Mrs. Callahan, took no step to carry out the order of sale made by the probate court, until requested and advised so to do by Tilton Davis, an attorney-at-law, which request was made in the presence of and was acquiesced in by James M. Callahan; that said Davis had been employed by Mrs. Callahan to attend on her behalf to certain actions at law which were named in a written agreement, viz: the cases of Megede v. Callahan; Sallie M. Nutter v. E. A. Nutter et al.; The State v. Warner; Wentworth v. Chapman et al., and Sallie W. Nutter v. Callahan, and also “to any and all cases that may hereafter arise affecting or designed to affect the title of said Eliza A. Nutter in and to the lands heretofore conveyed to her by her rother, S. W. Nutter, by deed dated in July, 1868;” that Mrs. Callahan had actual notice of the administrator's sale before it took place, and Davis was present at it; that Jordan and Callahan were also present, and seemed to be acting together; that Jordan consulted with the Callahans about the sale beforehand; that the lands purchased in his name were paid for with Mrs. Callahan's money; that Jordan and Callahan both bid on the tract bought by the plaintiff, and ran it up to a high price; that plaintiff, in making his purchase, acted on the faith of the countenance given by Davis and James M. Callahan to the action of the administrator; that Callahan wrote the certificate of purchase given by the administrator to plaintiff; that before her marriage Mrs. Callahan had expressed to the administrator a willingness that some of the lands she had gotten from her brother should be sold to pay his debts; that Callahan had made the subsequent sale of the whole property to Jordan, with his wife's consent, and that he had made other contracts for her with her consent.

Testimony was given on part of the defendants tending to show that Mrs. Callahan did not know of the administrator's sale till after it had taken place, and never assented to it; that neither Davis nor her husband was authorized to represent her at the sale, and that they did not undertake to represent her; also, testimony tending to rebut the charge of a fraudulent combination between Jordan and the Callahans, and to show that plaintiff knew, when he made his purchase, that Mrs. Callahan was in possession, had a deed to the land, and claimed to own it. There was judgment for defendants, and plaintiff appealed.

H. C. Wallace for plaintiff in error.

1. Chapman, as administrator of Nutter, was fully authorized to sell. This case is totally different from McLaughlin v. McLaughlin's, Admr., 16 Mo. 242; Brown's, Admr. v. Finley, 18 Mo. 375, and George v. Williamson, 26 Mo. 192. There had been no attachment in either of those cases, in the life-time of the fraudulent grantor, as in this case. The judgments in the attachment suits in this case bound and were liens on the lands of the intestate. 1 Wag. Stat. 190, §§ 43, 45; Ib. pp. 94, 95, §§ 10 to 15; Ib. pp. 97, 98, §§ 28 to 35; Lackey v. Seibert, 23 Mo. 85, at page 92; Ensworth v. King, 50 Mo. 477; Hardin v. Lee, 51 Mo. 241; Freeman v. Thompson, 53 Mo. 183; Porter v. Schofield, 55 Mo. 57; Johnson v. Gage, 57 Mo. 165. The judgments being declared liens by a court of competent jurisdiction, it was the duty of the administrator to sell the lands without regard to the question as to what title would pass by the sale. Magrew v. Foster, 54 Mo. 258.

2. It was not necessary, in order that she be estopped thereby, that Mrs. Callahan should have been present, in person, at the sale; and even if she did not have actual notice of the intention of the administrator to sell, or of the order of the probate court for such sale, or of the sale itself, and the objects and purposes thereof, (which, however, we submit, the evidence taken, altogether, shows that she did have); yet, knowledge and notice to her attorney, Tilton Davis, was in law, knowledge and notice to her, as she is bound by the acts of her attorney in regard to such sale. The employment of Davis, as her attorney, was not merely for his services and attention to certain causes mentioned in their written contract--some of which affected her title to the lands conveyed to her by her brother--but was general in regard to all cases that might arise affecting or designed to affect her title. The proceedings in the probate court of Lafayette county, by Chapman, to obtain an order of said court for the sale of said lands, as well as the sale itself, and the report and approval thereof by said court, was evidently within the meaning of said written contract, “a case,” designed to affect the title of said Lizzie A. Callahan, in and to said lands, and hence, was a case which said Davis, as attorney, was engaged and employed to attend to for her. Sugden on Vendors, (1 Am. Ed.,) pp. 492, 493; Ib., (9 Ed.,) p. 262; 1 Story Eq. Jur., § 408; 1 Greenlf. Ev., §§ 113, 416; Story on Agency, §§ 126, 129, 256; Angell & Ames on Corp., § 305; Griffith v. Griffith, Hoffman Ch'y. 153, at pp. 158-9, and notes; Griffith v. Griffith, 9 Paige 315; Westervelt v. Haff, 2 Sandford's Ch'y. 98, 107. A husband may be the agent of his wife. Story on Agency, §§ 6, 7; Brady v. Bragg, 1 Head (Tenn.) 511.

3. The gist and gravamen of plaintiff's suit, and cause of action, is the encouragement and acquiescense given by Lizzie A. Callahan and her husband, in person, and by the husband and agent, and the attorney of said Lizzie A. Callahan, to plaintiff to purchase the land (40 acres) in controversy, at the public sale thereof, by Chapman, the administrator, and the fraud practiced on plaintiff in such purchase, by defendants, in which fraud defendant Jordan, who held a quit-claim deed for said land, at the commencement of said suit, from said other defendants, largely and actively participated. See Huntsucker v. Black, 12 Mo. 333; Taylor v. Zepp, 14 Mo. 482.

4. That defendants, and each of them, on the general principles of the doctrine of equitable estoppel, would be precluded from claiming or asserting title to the land in controversy in this case, as against plaintiff, there can be no question. 1 Story's Eq., § 385; Ib., § 387; Ib., 376; Wendell v. Van Rensselaer, 1 John. Chy. 354; Storrs v. Barker, 6 John. Chy. 166; Newman v. Hook, 37 Mo. 207; Lindell v. McLaughlin, 30 Mo. 28: Highley v. Barron, 49 Mo. 103; 3 Wash. Real Property, (10 Ed.) pp. 76, 77, 78, 79, 80, 106, 107; Rice v. Bunce, 49 Mo. 231; Tutt v. Boyer, 51 Mo. 425; Garnhart v. Finney, 40 Mo. 449; Barham v. Turbeville, 1 Swan 437; Beaupland v. McKeen,28 Penn. St. 124; Shaw v. Beebe, 35 Vt. 205; Blackwood v. Jones, 4 Jones Eq. 56; Hayes v. Livingston, 3 Cent. Law Journal 691; S. C., 34 Mich. 384; Turner v. Baker, 64 Mo. 218; Mills v. Graves, 38 Ill. 455; Snodgrass v. Ricketts, 13 Cal. 359; Hatch v. Kimball, 16 Me....