Lindley v. Russell
| Decision Date | 11 November 1884 |
| Citation | 16 Mo.App. 217 |
| Parties | E. P. LINDLEY, EXECUTOR, Appellant, v. T. P. RUSSELL ET AL., Respondents. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, LINDLEY, J.
Reversed and remanded.
JAMES J. LINDLEY and HENRY W. BOND, for the appellant: Injunction will issue whenever a suit at law affords “an unfair advantage” to adverse party.--57 Mo. 422; 51 Mo. 100.
CHARLES F. JOY and JOHN A. LEWIS for the respondents: The bill is multifarious.-- Mole v. Smith, Jac. Rep. 490-494; Bobb v. Bobb, 8 Mo. App. 257; Stallcup v. Garner, 26 Mo. 72; Robinson v. Rice, 20 Mo. 229; Maybury v. McClurg, 51 Mo. 256; Clark v. Cov. Mut. L. Ins. Co., 52 Mo. 272. The petition is also bad for the reason that two causes of action are not separately stated.-- Doan v. Holly, 25 Mo. 357. “No relief will be granted in equity where the complainant has a complete and adequate remedy at law.”-- Janney v. Spedden, 38 Mo. 395; Arnold v. Clepper 24 Mo. 273; Camp v. Matheson, 30 Ga. 170; Harkins' Appeal, 78 Pa. St. 196; Whittelsey v. Hartford, 23 Conn. 421.
The petition alleges the following facts: Mary A. Russel died on the 12th of October, 1883. By her last will, which was duly probated on the 13th of October, 1883, she named plaintiff as her executor. Letters testamentary were issued to plaintiff on the 26th of October, 1883. Certified copies of the will and letters are filed as exhibits with the petition. In addition to a small amount of personalty, which will be applied to pay legacies, about which there is no dispute, the rest of the property of the deceased was a farm of two hundred and thirty-six acres in Moniteau County, worth $10,000, and a lot on Grand Avenue, St. Louis, on which is erected a livery stable and other improvements, the whole of this last lot of ground being worth $15,000.
The will uses the following language as to these two tracts of land: “I devise to my executor Edward P. Lindley, hereinafter appointed, my farm in Moniteau County, Missouri, containing about two hundred and thirty-six acres; to him and his heirs, in trust however for the sole and separate use, benefit, and behoof of my niece Bella Gibson, free and separate from any interest or control of her husband, during her life, and at her death to the heirs of her body living, and if she die without heirs of her body living then to my brother Charles F. Christian, and his heirs absolutely.
I further devise to my said executor, a certain lot of ground in block 2290 in the city of St. Louis, fronting sixty-three feet two inches on Grand Avenue, by a depth of one hundred and sixty-seven feet, and whereas said lot has cost me about $4,000, and I have also lately executed a mortgage thereon for the sum of $2,000; and whereas my husband has expended money in erecting improvements thereon, I direct my said executor that upon the payment by my husband of a certain mortgage for the sum of $3,000, now resting upon my said farm, and the payment of said mortgage upon said lot, at or before the time said mortgage shall become due and payable, then my said trustee and executor shall convey by deed said lot to my said husband, or to whom he may direct, but in case my husband shall fail or refuse to pay off said mortgages, or to pay the amount sufficient to release the same to my executor at or before the same shall become due; then my executor shall proceed to sell said lot as soon as he may see fit, and shall take from the proceeds thereof the sum of $4,000; also sufficient to pay off said $2,000 mortgage in addition to this; and the balance of the proceeds he shall pay to my husband or to whom he may direct. From the proceeds of such sale or payment by my husband, my executor shall pay off and release the mortgage upon my said farm, and the balance, if any, shall pay to my niece Bella Gibson; and if my husband fail or refuse to pay the taxes upon said lot, my executor may proceed in the same manner with respect to said lot as he is directed in the case of said mortgages by my husband.”
Plaintiff is informed and believes that the mortgage on the Grand Avenue lot is to secure an indebtedness, not of $2,000 as the will recites, but of over $6,000. This intrinsic fact, he says, presents such difficulties of interpretation as to the proper duties of the executor therein, that he is compelled for his own safety and for the protection of the interests of the residuary devisees to seek a construction of said will in the matter of the proper amount required by said will to be paid by defendant T. P. Russell, before said lot shall be conveyed to him, or in case of his default as to such payment, the proper amount to be deducted by plaintiff in selling said lot as he is directed under said will in the event of non-payment by said T. P. Russell of the amount therein charged to him, and for full and specific directions to plaintiff in the discharge of his duties as executor of said will.
In January, 1883, before the execution of the will, the testatrix, in whom the title to the Grand Avenue lot was vested subject to a mortgage of about $2,000 for unpaid purchase-money, was requested by defendant T. P. Russell, her husband, to convey this lot to defendant W. J. Russell, a son of T. P. Russell by a former wife. This request was accompanied by a false representation by T. P. Russell to his wife that, unless she would make such a conveyance, she would lose title to the lot, by its being sold to pay the mortgage aforesaid and liens for unfinished improvements, and was made upon a pretense of raising money to complete these improvements, and that a new loan could thus be effected whereby the title to the lot would be protected, and its ownership saved to Mrs. Russell.
In furtherance of this fraudulent scheme to get the title out of his wife, T. P. Russell took a title investigator or draughtsman and a notary public out to his home with a blank deed to said lot to his son and a deed from the son over to the father of even date therewith, for one-half of the same lot, and in the presence of said title investigator, plaintiff's testatrix, signed conjointly with her husband and acknowledged the said deed to his son, Wm. J. Russell, and after signing and acknowledging said deeds, and while holding them in her possession undelivered, said testatrix inquired of the draughtsman or notary public whether it would prejudice her title to said property if these deeds were delivered to her husband, T. P. Russell, and should by him be recorded, and upon a reply made by this person that the title to said property might be impaired in such an event, she at once answered: “I will not deliver these deeds--they shall not go out of my possession to any one,” and thereupon the arrangement was immediately broken off and ended.
No valuable consideration was paid, or proposed to be paid by T. P. Russell or by W. J. Russell, or either of them, for these deeds, and plaintiff is informed and believes that whatever incumbrance had been placed on the Grand Avenue lot, was at the instance and for the sole use of T. P. Russell.
Testatrix was then suffering from the acute...
To continue reading
Request your trial