Linville v. Ripley

• Decision Date: 14 June 1943
• Citation: 173 S.W.2d 687,237 Mo.App. 1275
• Parties: William S. Linville, Respondent, v. Alice Ripley et al., Appellants
• Court: Kansas Court of Appeals

173 S.W.2d 687

237 Mo.App. 1275

William S. Linville, Respondent, v. Alice Ripley et al., Appellants

Court of Appeals of Missouri, Kansas City

June 14, 1943

Appeal from Nodaway Circuit Court; Hon. Ellis Beavers, Judge.

Reversed in part.

Meyer & Imbersteg and Horace Merritt for appellants.

(1) A party who speculates unnecessarily on a line of action leading to financial disaster cannot call on a court of equity for relief. Smith v. Citizens Bank of Gerald, 232 Mo.App. 906, 106 S.W.2d 45; Morrison v. Juden, 46 S.W. 994. (2) Linville came into court of equity with unclean hands. Any claim or lien upon the lands has been adjudicated in the case of Linville v. Ripley et al., 146 S.W.2d 581. Under the equitable doctrine of unclean hands, a reconveyance of land to a husband who conveyed in order to defraud his wife by obtaining a divorce and then procuring a reconveyance would not be compelled. Stillwell v. Bell, 248 Mo. 61, 154 S.W. 85. An attempt to establish a resulting trust by a party under similar facts as in the case at bar, it was held that the party does not come into equity with clean hands and therefore entitled to no relief. Derry v. Fielder, 216 Mo. 176, 115 S.W. 412. (3) Respondent is estopped from maintaining this action by his knowledge, acts, conduct and pleadings, and from filing, prosecuting, or maintaining this suit in equity against these defendant appellants. Jones on Evidence (3 Ed.), p. 275. In Linville v. Ripley et al respondent's claims were all passed on by the Supreme Court adversely to said Linville. Linville v. Ripley et al., 146 S.W.2d 581; 21 C. J., p. 1064; Fiene v Kierchoff, 176 Mo. 516, 75 S.W. 608; Cashion v Gargus, 267 Mo. 68, 183 S.W. 301. Respondent is estopped by his conduct because he practiced fraud in false representation and concealment of material facts intentionally and with malice as stated by him in his testimony in this case. False representation and concealment of material facts creates estoppel by conduct. Roth v. Hoffman, 234 Mo.App. 114, 111 S.W.2d 988; Hamilton v. Northeast Ins. Co., 116 S.W.2d 159; Taylor v. Farmers Bank, 135 S.W.2d 1108; Hagerty v. St. Louis Police Relief Assn., 141 S.W.2d 174.

D. D. Reeves and A. F. Harvey for respondent.

(1) When land is purchased at a probate sale and the title fails, the man who furnished the purchase price gets nothing for his money and therefore is entitled to have the money refunded by those who got the money, in this case, by the administrator and the widow and heirs for whose use the money was paid. Patillo v. Martin, 107 Mo.App. 653; Peck v. Rea, 272 S.W. 978; Schafer v. Causey, 76 Mo. 365; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Cunningham v. Anderson, 107 Mo. 371; Shoultz v. Lee, 260 Mo. 719; Jones et al. v. Manly, 58 Mo. 559; Shroyer v. Nickell, 55 Mo. 264; Henry v. McKerlie, 78 Mo. 416; Cunningham v. Kinnerk, 74 S.W.2d 1107; State ex rel. v. U.S. Fid. & Guar. Co., 163 S.W.2d 86, 89. (2) In such case, those who received and obtained the money, or who received the benefit of it by having their obligations paid, are the ones who should pay it back. Peck v. Rea, 272 S.W. 978; Shoultz v. Lee, 260 Mo. 719. (3) Where the grantee purchases land and the title fails and he gets nothing for his money, where he has paid the purchase price in advance he has a vendee's lien for the purchase price paid, which the vendee can enforce. Stewart v. Wood, 63 Mo. 252; Henry v. McKerlie, 78 Mo. 416; Ryan v. Dunlap, 111 Mo. 610, 620; 8 Am. & Eng. Anno. Cases; Everett v. Mansfield, page 956, and note following. A purchaser also has the option of proceeding in equity for specific performance of the contract or for its rescission and for a complete relief. 66 C. J., p. 1464, sec. 1549, sec. 1555, p. 1469; Sanders v. Sheets, 287 S.W. 1069; Parson v. Kelso, 141 Mo.App. 369; Interstate Hotel Co. v. Woodward & Burgess Amusement Co. et al., 103 Mo.App. 198; Devore v. Devore, 138 Mo. 181; Occidental Realty Co. v. Palmer, 102 N.Y.S. 648, 192 N.Y. 588, 85 N.E. 1113; Coble v. Denisen & Carter, 151 Mo.App. 319; Higgins v. safford, 67 Mo.App. 469; Langford v. Caldwell, 48 Mo. 508. (4) The settlements of the administrator shown on pages 63 and 64 of the appellants' abstract of record together with the order of court made on the 7th day of November, 1938, as shown on pages 72, 73, and 74 of appellants' abstract of record, show the money expended for the benefit of the estate and amply justify the decree rendered, as shown on pages 138, 139, 140, 141, and 142 of appellants' abstract of record. (5) It is claimed that a judgment at law certified to the probate court is sufficient when it is impossible to determine, except by an accounting in equity, which can only be had in an equitable proceeding, the amounts that the heirs should be charged with and the lien given on the land in the estate. Cunningham v. Kinnerk, 74 S.W.2d 1107, 1113; Butler v. Lawson, 72 Mo. 227; Brewing Co. v. Steckman, 180 Mo.App. 320; Davis v. Roberts, 226 S.W. 662.

Sperry, C. Boyer, C., concurs.

OPINION

SPERRY

This is a proceeding in equity to recover purchase money paid by William S. Linville to Emmett Bartram, administrator of the estate of John A. Ripley, deceased. The suit was brought by Linville, plaintiff, against Emmett Bartram, administrator, and Alice Ripley, Susie Summers, Faye Jopling, Beatrice Bundy, Dorothy Bundy and Fern Randall, widow and heirs-at-law of deceased, defendants. Lewis W. Garnett was permitted to become a defendant, after suit was filed, on motion filed by him through Linville's attorney. Judgment was for plaintiff, and the widow and heirs-at-law, only, prosecute this appeal.

This court is somewhat familiar with the facts out of which this lawsuit arose, there having been five cases, involving substantially similar facts, that have reached this court. We have rendered written opinions in three of those cases. [Bank of Skidmore v. Ripley et al., 84 S.W.2d 185; State ex rel. Bank of Skidmore v. Roberts, 116 S.W.2d 166; Bank of Skidmore v. Bartram, 142 S.W.2d 657.] Another case growing out of the same general transaction and involving many of the facts forming the basis of the above-mentioned litigation was the subject of a decision rendered by the Supreme Court. [Linville v. Ripley, 146 S.W.2d 581.] For a clear understanding of the facts and issues here involved it is recommended that all of the above opinions be read.

Plaintiff purchased from the administrator a part of the real estate owned by John A. Ripley at the time of his death, and paid into the hands of the administrator the sum of $ 2050 cash as purchase price therefor. It was later held, by the Supreme Court, that the administrator had no power to sell said real estate because it was not sold to pay any indebtedness owed by the said John A. Ripley, deceased, and that court ordered that the administrator's deed, theretofore delivered to plaintiff, be cancelled (Linville v. Ripley, supra); and the court also said, l. c. 584: "Under these holdings it would not be equitable for the administrator of the estate to retain the proceeds from the sale. They should be returned to the proper party." This suit is brought to recover said purchase price money.

The evidence in the case at bar disclosed that Bertram, the administrator, had paid out, prior to the filing of this suit, $ 1167 of said funds and that he, at the time of trial, retained $ 833, the balance thereof. The evidence further disclosed that the money paid out by the administrator was paid to various persons for attorney fees, court costs, appraisal fees, administrator's fees and expenses, abstract fees, printing, etc.; that said items were paid after the probate court had authorized payment by court orders duly made of record; and that said items so paid were for fees, services, costs and expenses rendered and incurred long after the administration of the estate of John A. Ripley had been instituted.

The trial court, after hearing the testimony, rendered the following judgment:

"Wherefore It is by the court ordered, adjudged and decreed that plaintiff, William S. Linville, have and recover of and from the administrator of said estate said sum of Two Thousand Fifty ($ 2050) Dollars together with interest thereon from the 7th day of August, 1941, at the rate of six per cent per annum until paid. That the lien and charge of said trust funds be on all funds now in his hands or coming into said estate and coming into his hands as such administrator be enforced and said administrator be bound and held for the payment of said sum of Two Thousand Fifty ($ 2050) Dollars and interest thereon as aforesaid as a trust fund. That the lien and charge upon the lands herein before described be enforced upon and against said lands and said sum of Eleven Hundred Sixty-seven ($ 1167) Dollars for the use and benefit of said estate and the aforesaid lands or sufficient thereof to pay said indebtedness of Eleven Hundred Sixty-seven ($ 1167) Dollars being a portion of said original indebtedness of said administrator of Two Thousand Fifty ($ 2050) Dollars, be seized, levied upon and sold as upon a special execution and that plaintiff have and recover his interest in the sum of $ 90.50 together with costs. And that said administrator, now having in his hands the sum of Eight Hundred Thirty-three ($ 833) Dollars, being a part of said original Two Thousand Fifty ($ 2050) Dollars so paid to him in trust as aforesaid, be and he is hereby adjudged to pay said funds to said amount from said trust funds in his hands, or to pay said amount to said plaintiff from and out of...