In re Estate of Ferguson's

• Decision Date: 12 November 1894
• Citation: 27 S.W. 513,124 Mo. 574
• Parties: In re Ferguson's Estate; the Planet Property and Financial Company, Appellant
• Court: Missouri Supreme Court

27 S.W. 513

124 Mo. 574

In re Ferguson's Estate; the Planet Property and Financial Company, Appellant

Supreme Court of Missouri, First Division

November 12, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

T. J Rowe and J. M. Holmes for appellant.

(1) Courts of equity will not decree specific performance when the decree would do injustice, and, generally, not in any case where it would be inequitable under all the circumstances. 2 Story's Eq., secs. 769 and 770; Veth v. Gierth, 92 Mo. 104. (2) When the purchaser has paid a substantial portion of the purchase money equity will treat him as the owner of the land, and, unless he has been guilty of gross laches, if the delay in the payment of the balance of the purchase money can be compensated in damages, will decree a performance of the contract. Edgerton v Peckham, 11 Paige, 352. (3) On the other hand, if the purchaser has paid no portion, or but a small portion of the purchase money, the utmost diligence is required of him. The smallest unexplained delay will constitute laches, and will destroy his right to a specific performance. Wells v. Smith, 7 Paige, 22; O'Fallon v. Kennedy, 45 Mo. 124. (4) Again, the rule is well settled that a party seeking equitable relief must seek it with due diligence, and can not obtain it if he be guilty of laches, even though he bring his suit within the period fixed by the statute of limitations. Bliss v. Prichard, 67 Mo. 181; Burgess v. Railroad, 99 Mo. 496; Glass v. Rowe, 103 Mo. 513; Kroenung v. Goehri, 112 Mo. 641. (5) In Klein v. Vogel, 90 Mo. 247, a delay of three years was held fatal to the right of the plaintiff (a purchaser of an equity of redemption) to maintain a bill to set aside a deed of trust sale. (6) The rule as to laches is much more sharply drawn in the case of unilateral contracts -- contracts by which one party only is bound. In such cases the rule is that the party agreeing to do anything is not bound at all, unless he has actually received the benefit of the consideration for which he bargained. Richardson v. Hardwick, 106 U.S. 252; Glass v. Rowe, 103 Mo. 513.

John D. Davis for respondent.

(1) "Where, upon the purchase of property, the conveyance of the legal estate is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a resulting or presumptive trust immediately arises by virtue of the transaction, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds. A similar rule prevails in cases where the consideration proceeds from two or more jointly and the conveyance of the legal estate is taken in the name of one of them only." Hill on Trustees, page 92; Baumgartner v. Guessfeld, 38 Mo. 36. (2) Laches is defined as such neglect or omission to assert a right, as taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party operates as a bar in a court of equity. 12 Am. & Eng. Encyclopedia of Law, 553; 2 Abb. Law Dict., 2; 2 Bouv. Law Dict., 40. (3) Mere lapse of time, short of the period fixed by the statute of limitations, will not bar a claim to equitable relief, where the right is clear, and there are no countervailing circumstances. Kelly v. Hurt, 61 Mo. 463; Bradshaw v. Yates, 67 Mo. 221; Spurlock v. Sproule, 72 Mo. 503. (4) Mere laches and acquiescence should be distinguished. Archibald v. Scully, 9 H. L. Cases, 360. (5) Lapse of time is permitted in equity to defeat an acknowledged right only on the ground of raising a presumption that the right has been abandoned -- and this presumption will never prevail against opposing facts and circumstances outweighing it. Nelson v. Carrington, 4 Munf. 332; Reardon v. Seary, 1 Litt. 53; Pomeroy on Contracts, sec. 405, note 1, and cases cited; Mastin v. Grimes, 88 Mo. 478. (6) The law is well settled that an administrator may waive the general statute of limitations and may revive a debt against the estate of his testator, or intestate, even after it is barred by the general statute. Shouler on Executors, sec. 389; Woerner's Am. Law of Adm'n, sec. 401; Wiggins v. Lovering, 9 Mo. 262; Stiles v. Smith, 55 Mo. 363; Carder v. Primm, 47 Mo.App. 301. (7) The filing of plaintiff's bill for specific performance even though the contract had been unilateral, would at once bind him and make it mutual. Coleman v. Upcot, 5 Viner, 527; Fry on Spec. Perf. [3 Ed.], sec. 469.

OPINION

Macfarlane, J.

This proceeding was commenced in the probate court of the city of St. Louis, at the June term, 1891, against the estate of William F. Ferguson, deceased, upon the petition of Edward C. Dameron, as assignee, to enforce the specific performance of a contract for the conveyance of real estate by deceased to one William C. Jamison. For a full understanding of the questions of law involved the contract is given in full, and is as follows:

"Whereas, Jesse G. Lindell, by his last will and testament, dated January 18, 1858, and probated in the St. Louis probate court, February 9, 1858, and recorded in Book of Wills F, page 174, devised unto Jesse G. Lindell, Jr., a son of Peter Lindell, 1-36 undivided interest in all of his property of every nature and kind whatsoever, real, personal and mixed, subject to the life estate of Jemima Lindell, his widow;

"And, whereas, the said Jesse G. Lindell, Jr., conveyed all of his interest in said estate, as aforesaid, unto his mother, Ellen Davis, trustee;

"And, whereas, the said Ellen Davis, by her said trustee, by deed of trust, dated June 30, 1874, and recorded in recorder's office of the then county, now city of St. Louis, in Book 505, page 78, conveyed the said property to Charles Hoyle's trustee to secure the payment of the notes therein described;

"And, whereas, in pursuance to the said deed of trust, on account of the nonpayment of said notes, George W. Cline, trustee in said deed of trust, sold the said property at public auction on the twenty-third day of December, 1879, and at said sale William F. Ferguson purchased a portion of said property, and by deed dated December 23, 1879, acknowledged January 26, 1880, before Dorsey A. Jamison, the said George W. Cline, trustee in said deed of trust, conveyed unto said William F. Ferguson the said property purchased by him as aforesaid, and reference is here made to said deed for a more particular description of said property, and the said deed is here made a part hereof;

"And, whereas, a portion of said notes described in said deed of trust were owned by William C. Jamison and the note for ten thousand dollars was owned by said William F. Ferguson;

"Now, therefore, for and in consideration of the premises and for value received, it is hereby mutually covenanted and agreed by and between William F. Ferguson, party of the first part, and William C. Jamison, party of the second part, that said party of the first part will hold said property as security for the said ten thousand dollars and interest thereon, from and after January 1, 1880, at the rate of eight per cent. per annum, payable semiannually, and when the said ten thousand dollars shall be paid and the interest as aforesaid shall be paid, then the said party of the first part will convey to the said party of the second part the said real and personal estate, or to such person as the said party of the second part shall direct; that, after the payment of said ten thousand dollars and interest as aforesaid, the said party of the second part shall be the owner and entitled to a conveyance of the said property conveyed to said party of the first part by said trustee, as aforesaid, that the said party of the second part will pay the said interest, as aforesaid, when it becomes due, as aforesaid.

"Witness our hands and seals on this twenty-third day of December, eighteen hundred and seventy-nine.

"William F. Ferguson, [seal]

"William C. Jamison. [seal]"

The indorsements on this contract showed that semiannual payments, of $ 400 each, were made by Jamison July 14, 1880; February 25, 1881; March 18, 1882; July 27, 1882; February 23, 1883, and on the twenty-fifth day of July, 1881, a small portion of the land was released in part payment of an installment of interest.

After a hearing, the probate court ordered the administrator to make, to the said Dameron, a deed to the property, in execution of the contract, and the appellant, who was a creditor of the said Ferguson, appealed to the circuit court. Upon a trial in that court, the following facts were developed:

By the will of Jesse G. Lindell, made in 1858, one thirty-sixth interest in his estate was devised to Jesse Lindell, subject to the life estate of the widow of the testator. On the twenty-seventh day of June, 1874, Jesse Lindell conveyed the property to William C. Jamison, as trustee for Ellen Davis. On June 30, 1874, Jamison, as trustee, conveyed the property to George W. Cline, as trustee, to secure a note for $ 10,000, dated on that day, and payable three years after date, and six semiannual interest notes for $ 500 each, the last one maturing thirty-six months after date. On the twenty-third day of December, 1879, the land was sold by Cline, as trustee, under a power contained in the deed of trust, and Ferguson became the purchaser for $ 9,705, and a deed was made to him, and on the same day the contract in question was made between Jamison and Ferguson. Ferguson died in September, 1883, and his administrator is a party. On August 6, 1884, Jamison, being insolvent, by deed acknowledged and delivered, in consideration of $ 1,000, assigned said contract to Logan D. Dameron.

In February, 1886, the administrator of Ferguson undertook to sell the property...