Laundy v. Girdner

• Decision Date: 18 March 1922
• Docket Number: No. 22691.,22691.
• Citation: 238 S.W. 788
• Parties: LAUNDY v. GIRDNER.
• Court: Missouri Supreme Court

238 S.W. 788

LAUNDY v. GIRDNER.

No. 22691.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Appeal from Circuit Court, Harrison County; L. R. Woods, Judge.

Action by William Laundy against Charles Girdner to cancel a deed, and from a judgment and decree canceling the same, the defendant appeals. Judgment and decree affirmed.

This is an action in equity to cancel a deed executed pursuant to foreclosure under a deed of trust; the same being based upon fraud. The property involved is a tract or parcel of land with improvements in Harrison county, Mo. From the decree of the court canceling said deed, defendant has appealed.

Plaintiff charged in his petition that the defendant, his wife joining, as the owner of said property, on the 18th day of February, 1914, executed a certain deed of trust thereon to secure defendant's note in the sum of $1,000; that thereafter defendant conveyed the equity in said property; that by mesne and intermediate conveyances Plaintiff acquired title to said equity, and that his deed was made subject to said deed of trust, and with a stipulation that he, as grantee, assumed and agreed to pay the obligation secured thereby; that plaintiff acquired title on the 5th day of January, 1917, for a consideration of $4,000; that at the time he acquired said property he was a nonresident of Harrison county; that soon thereafter he became sick, and for several months was unable to look after said property; that he employed the defendant, who then resided at Cainesville in Harrison county, where said real estate was located, as his agent and representative to look after said property and collect the rent thereon; that said real estate was rented for $12.50 per month; that defendant collected said rents, paid taxes assessed against it, and applied the balance of the rents collected to the liquidation of the said $1,000 note, which, it appeared inferentially from the petition and positively from the testimony, the defendant had theretofore acquired.

Plaintiff further alleged that—

On July 30, 1917, he paid the defendant $291.52 on account of the principal and interest on said note; that thereafter upon an inquiry by him of defendant as to the amount of said note, after all proper credits, defendant replied by letter that he did not have said note, and did not know the amount, but made inquiry of plaintiff in turn as to his price on said property; that defendant continued to act as the agent of plaintiff in the renting and management of said property until the 7th day of October, 1918; that while thus acting as agent "the defendant, without the knowledge of the plaintiff, fraudulently, and for the purpose of cheating and defrauding the plaintiff out of his said property aforesaid, procured the sheriff of Harrison county, Mo., to advertise said real estate for sale under the deed of trust, executed by said defendant and his said wife. * * * And that thereafter he procured the said sheriff on October 7, 1918, to pretend to sell said real estate of the said plaintiff under said deed of trust aforesaid. And at said sale on the 7th day of October, 1918, the defendant pretended to bid in said real estate and took a deed from said sheriff to himself, reciting in said deed that he had bought said property at said sale at and for the sum of $500."

Plaintiff averred in his petition that he had no knowledge of said purported sale, and that the deed obtained by defendant was fraudulent and void as being in violation of the trust and confidence placed in him as the agent and employé of plaintiff.

Plaintiff offered to do equity in his bill by tendering into court the balance due on said $1,000 note, and then prayed for a cancellation of the deed received in foreclosure, and for "all further orders and judgments as to the court shall seem meet and just."

The answer admitted the transfers of said property as alleged in plaintiff's petition, and averred that defendant became the owner, by purchase, of the note secured by deed of trust thereon; alleges that said property became vacant, and that he was compelled to look after it for his own protection; that he had demanded of plaintiff a readjustment of said loan; that on the 9th day of April, 1917, plaintiff wrote to defendant that he would be over to Cainesville soon to take up said note; that plaintiff made a contract with the renter of said property independently of defendant; that thereafter defendant made demands for payment of said note and was ignored; that he accepted the rent on said property, and applied it toward liquidation of said note; denied that he ever acted as agent of plaintiff, or that be was ever employed by plaintiff to "look after said property or collect the rents thereon, and denied that plaintiff ever made any effort to pay said note, but averred that he (defendant) acted of his own volition in collecting said rents and applying same as a credit on said note.

Defendant denied that there was any fraud In the sale of said property, but asserted that it was conducted in strict accordance with the provisions of said note and deed of trust.

The testimony of plaintiff tended to support the allegations of his petition. It appeared that he lived in Spickard in Grundy county, Mo.; that after acquiring said property he had correspondence with defendant, and on several occasions visited Cainesville; that he had looked after some improvements on said property in person, but that defendant attended to the collection of all rentals thereon and the payment of accruing taxes, and took "care of it"; that defendant had indicated to plaintiff his willingness to indulge him in the matter of said note— "said he wasn't needing it just then, and I could just let it run"; that plaintiff was ill for several months; that he had written defendant in reply to a demand for payment of said note, the fact of his illness, and requested to know if he would not "wait on me a short time until I could get up and make some arrangements, and I never heard any more from him, and I supposed it was all right." Prior to this, defendant had assured plaintiff that it "made no difference to him [defendant] to carry it along." Previous demands were followed by forbearance when respondent evinced an ability and willingness to take up the note. Defendant, in his testimony, denied the agency, but admitted that he had collected rents on said property on behalf of plaintiff until the sale of said property in October, 1918.

He said that he had given credit for the proceeds of said collection after the payment of taxes. Upon this testimony the court found that defendant was the agent of plaintiff ; that plaintiff was ill for several months during said agency, and that, taking advantage of plaintiff, defendant had caused said property to...