Harwood v. Toms
| Decision Date | 05 November 1895 |
| Citation | 32 S.W. 666,130 Mo. 225 |
| Parties | Harwood v. Toms et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 130 Mo. 225 at 239.
Appeal from De Kalb Circuit Court. -- Hon. C. H. S. Goodman, Judge.
Reversed and remanded.
Lester M. Hall and Kendall B. Randolph for appellant.
(1) The note and trust deed, under which respondent claims, were made to A. W. Frederick, J. T. House, and J. F. Harwood (respondent) as joint obligees. The whole transaction was repudiated by J. T. House. Henry v. Township, 70 Mo 500; 1 Parsons on Contracts [6 Ed.], side paging 21 to 26; Clark v. Cable, 21 Mo. 223; Ryan v. Riddle, 78 Mo. 521; Rainey v. Smizer, 28 Mo. 310; Dewey v. Carey, 60 Mo. 224; Bishop on Contracts, sec. 875, and cases there cited. (2) Either one of the three joint obligees, Frederick, House, or Harwood, could have discharged the note and trust deed, and the others would have been bound thereby. They stood in privity to each other. "A man becomes a privy whenever he agrees to become bound by the acts of a third person." 1 Herman on Estoppel and Res Judicata, 150. (3) The money arising from the loan from H. C Wilson & Company to John R. Oaks was paid to A. W. Frederick by H. E. Glazier, agent for H. C. Wilson & Company, with the agreement that he should pay all liens against the land in controversy. This included the claim of Frederick, House, and Harwood, and constitutes payment; a payment to one of several joint obligees discharges the obligation. Wright v. Ware, 58 Ga. 150; Henry v. Mt. Pleasant Twp., 70 Mo. 500; Clark v. Cable, 21 Mo. 223; Ryan v. Riddle, 78 Mo. 521; Rainey v. Smizer, 28 Mo. 310; Dewey v. Carey, 60 Mo. 224. (4) This also created an estoppel which operates against Frederick as well as his co-obligees. Austin v. Loring, 63 Mo. 19; 2 Herman on Estoppel and Res Judicata, p. 1227, sec. 1096. (5) An estoppel may be created as well by acts as words; by misleading either by silence or encouragement. Guffey v. O'Reiley, 88 Mo. 418; Thistle v. Buford, 50 Mo. 278; Collins v. Rogers, 63 Mo. 515; Austin v. Loring, 63 Mo. 19; Campbell v. Johnson, 44 Mo. 247; Rice v. Bunce, 49 Mo. 231; Stevenson v. Saline County, 65 Mo. 425; Bishop on Contracts, sec. 298, and cases there cited. (6) The representations by Mr. A. W. Frederick to H. E. Glazier pending the loan by H. C. Wilson & Company to John R. Oaks, and his representations to Wilson and Toms, made after Oaks had defaulted in the payment of interest, created an estoppel which extended to all the obligees in the note and trust deed under which respondent claims. Chouteau v. Goddin, 39 Mo. 229; Cooley v. Warren, 53 Mo. 166. (7) The fact that a title is of record is no justification for acts which mislead the other party. Thistle v. Buford, 50 Mo. 278; Rice v. Bunce, 49 Mo. 231, supra; Olden v. Hendrick, 100 Mo. 533; 2 Herman on Estoppel and Res Judicata, sec. 914. (8) The execution of the deed from Frederick to Oaks for the land in controversy extinguished all claims of Frederick and his co-obligees to said land; Henry v. Mt. Pleasant Twp., 70 Mo. 500, supra; Clark v. Cable, 21 Mo. 223, supra; Wright v. Ware, 58 Ga. 150, supra. (9) Respondent can not accomplish by indirection, what he could not accomplish by direct proceedings. So long as J. T. House repudiated the note and trust deed, the respondent and A. W. Frederick, nor either of them, could have maintained an action against Oaks for the collection of the note. If they could not sue without House, neither could they collect by foreclosure. If they could not enforce payment against Oaks or against Oaks' interest in the land, they can not enforce it against Oaks' grantees. Bailey v. Powell, 11 Mo. 265; 1 Parsons on Contracts [6 Ed.], side paging 25 and 26. (10) In chancery cases the supreme court will go over the evidence and make findings of its own. It will not abdicate its jurisdiction by deferring to the findings of the trial court. Benne v. Schnecko, 100 Mo. 258; McElroy v. Maxwell, 101 Mo. 308; Berlien v. Bieler, 96 Mo. 491.
S. S. Brown and Casteel & Haynes for respondent.
(1) The evidence wholly fails to show a repudiation by House of the Rogers deed of trust. (2) Equally untenable is the contention on the part of appellants, that Frederick agreed to pay all liens against the land, and that such agreement included the debt of $ 2,500 secured by the deed of trust from Oaks to Rogers. (3) The fact, if true, that Glazier did not know of the Rogers deed is attributable to his own negligence, against the consequences of which a court of equity will not relieve him. Bunn v. Lindsey, 95 Mo. 250; Blodgett v. Perry, 97 Mo. 263; Acton v. Dooley, 74 Mo. 63; Pasley v. Freeman, 2 Smith's Lead. Cases, 175. (4) Appellants have no right of subrogation in this case. Bunn v. Lindsey, 95 Mo. 250. (5) Harwood is not estopped on account of the alleged deed from Frederick to Oaks.
Silver & Brown, also, for respondent.
(1) The original existence of the debt secured in the Rogers deed of trust is not assailed in the answer. A party can not, in an equity case, succeed upon a case proved but not alleged any more than upon a case alleged and not proved. Foster v. Goddard, 1 Black, 506; Grosholz v. Newman, 21 Wall. 481; St. Louis, etc., v. Delano, 108 Mo. 217. (2) The defense of estoppel is not only insufficiently pleaded in the answer, but is not sustained by the evidence. A representation to operate as an estoppel must be plain and certain and not be a mere matter of inference or argument. Tillotson v. Mitchell, 111 Ill. 518; Tash v. Rendell, 72 Ind. 480; Mason v. Budge, 28 W.Va. 650. (3) The alleged representations related merely to a future fact and are unavailable as an estoppel. White v. Ashton, 51 N.Y. 280; Allen v. Rundle, 50 Conn. 9; Jackson v. Allen, 120 Mass. 79; Turnipseed v. Hudson, 50 Miss. 439; Allen v. White, 51 Vt. 395; Ins. Co. v. Mowry, 96 U.S. 544; Bank v. Todd, 47 Conn. 191. (4) A promise within the statute of frauds will not be binding by way of estoppel though acted upon. Brightman v. Hicks, 108 Mo. 246. (5) The purchaser of an estate who was compelled to give it up from a defect in the title which his attorney had carelessly overlooked was not allowed to recover back the purchase money which he had paid. Winston v. Pate, 3 Vesey, 235. (6) Courts of equity will not relieve against the negligence of complainant. Bryant v. Hitchcock, 43 Mo. 527; Perry v. Craig, 3 Mo. 516; Chamberlain v. Peltz, 1 Mo.App. 185. (7) The supreme court will defer to the finding of facts by the trial court. Bartlett v. Brown, 121 Mo. 353; Taylor v. Crockett, 123 Mo. 300; Cox v. Cox, 91 Mo. 71; Boyle v. Jones, 73 Mo. 403; Hodges v. Black, 76 Mo. 537; Sharpe v. McPike, 62 Mo. 300; Rawlins v. Rawlins, 102 Mo. 563. The foregoing principle is especially applicable to the case in hand on the question of plea of payment of the Harwood note interposed by defendant, the burden of proving such plea being always on the party setting it up. Yarnell v. Anderson, 14 Mo. 619; Wear v. Lee, 26 Mo.App. 105; 13 Am. & Eng. Encyclopedia of Law, p. 253; 2 Greenleaf's Evidence [Redfield's Ed.], sec. 516.
OPINION
In Banc.
The present appeal deals with an issue in ejectment, upon which an equitable suit has been engrafted.
The record opens with a preliminary proceeding based on a petition (filed, September 17, 1889) containing, first, a statutory count to quiet title to the land in dispute (R. S. 1889, sec. 2092), and, then, a count in equity to enjoin defendants from prosecuting certain actions for unlawful detainer and replevin until the determination of the title to the land.
Mr. Toms, the party in possession, was plaintiff in that petition, and Messrs. Orr, Harwood, Frederick and Oaks were defendants. In due course (upon proceedings not now questioned) a judgment in that cause was reached, commanding Mr. Harwood to bring an action, within a given time, to try the title to the land now in controversy, or be barred from thereafter asserting any claim thereto.
As to the other defendants in the first petition, similar orders were made. Messrs. Orr and Harwood were the only parties who moved in compliance with the order to bring suit. They instituted the action of ejectment which is now here by appeal.
Messrs. Frederick and Oaks became barred under the provisions of the statutory law touching the quieting of titles (R. S. 1879, sec. 3562, and R. S. 1889, sec. 2092) in accordance with the judgment of the court upon Mr. Toms' petition, inasmuch as they took no steps to further pursue their claim of title to the land.
After Messrs. Orr and Harwood commenced this action (as required by the judgment to quiet title), the former, at an early stage, dropped out, and abandoned his claim, leaving Mr. Harwood as the sole plaintiff.
His petition, filed January 23, 1891, is in the ordinary form for an action of ejectment. The defendants therein named are Messrs. Toms, Aldrich, and Floyd. The first is the real defendant; the others are in possession as his tenants.
The defendants answered, setting up a variety of facts, the substance of which will sufficiently appear in the course of the opinion. The defenses which are chiefly important are, first, that the indebtedness secured by the deed of trust (under which plaintiff claims) has been satisfied; and, secondly, that plaintiff is estopped, by the facts of the case, to assert the title on which he relies.
We shall not find it necessary to go beyond the first of these defenses.
The cause was heard as one in equity, and the court directed a jury to report findings on ten interrogatories submitted to them at the close of the evidence.
The jury, however, disagreed as to all the...
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