Lappin v. Nichols

• Decision Date: 04 January 1915
• Docket Number: No. 16743.,16743.
• Citation: 172 S.W. 596
• Parties: LAPPIN et al. v. NICHOLS et al.
• Court: Missouri Supreme Court

172 S.W. 596

LAPPIN et al. v. NICHOLS et al.

No. 16743.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

1. MORTGAGES (§ 616) — ACTIONS FOR DAMAGES — SUFFICIENCY OF PETITION.

A petition alleged that plaintiff was the owner of land subject to a deed of trust to defendants, and other prior deeds of trust including one to C., procured by fraud and duress; that defendants fraudulently procured a sale under their deed of trust to one of them for a grossly inadequate price; that plaintiff in 1901 sued C. and obtained a decree setting aside his deed of trust which was affirmed in 1909; that defendants helped to prosecute that suit and agreed that plaintiff should be allowed to redeem; that in December, 1901, plaintiff sued defendants to set aside the trustee's sale; that the sale was set aside and plaintiff given until June 7, 1902, to redeem, which time was subsequently extended in order that plaintiff might mature the crops of that year, defendants understanding the purpose of this extension, and that plaintiff should have a further extension to enable her to redeem; that during the existence of the deed of trust plaintiff was required to surrender to defendants a large portion of the farm products; that in 1901 defendants took all the crops raised for the fraudulent purpose of preventing plaintiff from redeeming; that plaintiff planted crops in 1902, under an agreement with defendants that they should be used in payment of the indebtedness; that defendants caused the land to be sold on August 12, 1902, under a special execution on the decree of foreclosure, and that one of defendants became the purchaser; that defendants, knowing the C. deed of trust was void and that plaintiff could not raise the money to redeem, wrongfully proceeded to foreclose; and that they seized a large part of the crops raised in 1902, increasing plaintiff's disability to pay the indebtedness. It prayed for judgment for the amount of the C. mortgage and for a decree allowing redemption. Held, that no facts were alleged justifying a recovery against defendants for the amount of the C. deed of trust, which all of the parties were interested in getting rid of and united in prosecuting a suit to annul.

2. MORTGAGES (§ 616) — SALES — SETTING ASIDE — SUFFICIENCY OF PETITION.

The petition did not allege facts justifying the setting aside of the sale under the special execution, especially as it alleged no consideration for defendants' promise that plaintiff would be allowed to redeem, did not allege what products were seized by defendants or their value, and did not allege the length of the extension of plaintiff's right to redeem, or that the sale under the special execution was prior to the expiration of such extension.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Mollie Lappin and another against E. C. Nichols and another. From a judgment dismissing the bill, on demurrer, plaintiffs appeal. Affirmed.

This is a proceeding to set aside a foreclosure sale of land under a deed of trust, and to redeem. A demurrer to the petition was sustained. The plaintiffs declined to further plead, and their bill was dismissed. The suit was begun April 22, 1910. The amended petition stated: That the plaintiff Mollie Lappin is the owner of 320 acres of land therein described. That on March 17, 1900, plaintiffs executed deeds of trust on the land as follows: To R. W. Sprague for $5,760; to Jerome Dickerson for $576; to A. B. Crawford for $1,000. That the latter deed of trust was procured by Crawford by fraud and duress. That on July 14, 1900, plaintiffs executed a deed of trust on the land to the defendant Nichols & Sheppard Company for $2,175. That the defendants fraudulently, and for the purpose of cheating plaintiffs out of said land, procured it to be sold under the last-mentioned deed of trust on March 23, 1901, at the unusual hour of 9 in the forenoon, in the absence of plaintiffs. And that the defendant E. C. Nichols became the purchaser at that sale at the grossly inadequate price of $100, and received the trustee's deed therefor. That on January 31, 1901, they instituted suit against said Crawford to set aside the deed of trust held by him, resulting in a decree setting it aside, which was affirmed by this court June 8, 1909. Lappin v. Crawford, 221 Mo. 380, 120 S. W. 605. That the defendants employed counsel who helped prosecute said case, and that defendants agreed that plaintiffs should be allowed to redeem said land. That on December 12, 1901, the plaintiffs instituted suit against these defendants to set aside said sale of the land and to redeem. That the court set...