McGlothlin v. Hemery

• Decision Date: 31 August 1869
• Parties: EPHRAIM MCGLOTHLIN, Adm'r of WALTER MOORE, et al., Appellants, v. JAMES HEMERY and REZIN HEMERY, Respondents.
• Court: Missouri Supreme Court

44 Mo. 350

EPHRAIM MCGLOTHLIN, Adm'r of WALTER MOORE, et al., Appellants,

v.JAMES HEMERY and REZIN HEMERY, Respondents.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

H. M. & A. H. Vories, for appellants, cited Miltenberger v. Morrison, 39 Mo. 71; Sto. Eq. Pl. §§ 402, 271 et seq., also note 1 on page 265, and § 278, etc.; 19 Mo. 551; 37 Mo. 441.

Hall & Oliver, for respondents, cited Gen. Stat. 1865, p. 658, § 3; 36 Mo. 215; Doan v. Holly, 25 Mo. 359; Hoagland v. Han. & St. Jo. R.R. Co., 39 Mo. 459; Peyton v. Rose, 41 Mo. 261; Meyers v. Field et al., 37 Mo. 441; 42 Mo. 488; 17 Mo. 231; 20 Mo. 234; 29 Mo. 29.

BLISS, Judge, delivered the opinion of the court.

The plaintiff McGlothlin, as administrator, and the other plaintiffs, as heirs of Walter Moore, present to the Circuit Court of Caldwell county their petition to set aside the sale made to James Hemery, defendant, under a trust deed to Rezin Hemery, for his use, of certain lands belonging to said estate. They state in detail all the facts which they suppose entitle them to relief; and inasmuch as defendants have demurred upon the ground of insufficiency, multifariousness, misjoinder, etc., it is necessary to consider the petition somewhat in detail.

The plaintiffs allege that in October, 1858, the said Walter Moore borrowed of said James Hemery the sum of $390, for which he gave his notes for $450 at ten per cent. interest; and that afterward, on the 10th day of September, 1860, he gave a new note of $1,216.87, for the money so borrowed and interest, when in fact but $465.84 was then lawfully due for the principal and interest of the debt. At the same time, in order to secure said last mentioned note, the said Moore gave to said Rezin Hemery a trust deed of sundry parcels of land described in the petition, with power of sale, etc.; and on the 12th day of February, 1863, he died. On the 7th of March, 1864, the plaintiff McGlothlin, as administrator, paid said James Hemery, upon said debt, the sum of $600; and afterward, on the 11th of September, 1865, tendered him the sum of $200, which he refused to receive in satisfaction of the debt, but claimed a much larger sum. The petition alleges that there was actually due upon said indebtedness the sum of only $33.19, which he brings into court for the defendant, but that he offered to pay the $200 to save trouble to the estate, inasmuch as the note and mortgage called for a much larger amount. After the death of Moore, the plaintiff McGlothlin was appointed his administrator, which the defendants well knew, but the holder of the note never presented the same for allowance to the Probate Court; but the defendant Rezin Hemery, the trustee, at the request of James Hemery, on the 9th of November, 1865, sold to said James Hemery, under said deed of trust, a portion of the land embraced in it for the sum of $1,305, and subsequently conveyed the same. The land so sold is described in the petition, and the petition charges that both the said James and Rezin, at the time of the sale, knew that only the sum of $33.19 was due upon the debt, and that the sum of $200 had been tendered and refused; also, that the claim had never been allowed against the estate.

The petition also sets forth that claims amounting to $5,928 have been allowed against said estate, which are unpaid, and that the estate, in consequence of the sale under said deed of trust, has become insolvent; also, that the Probate Court of said county has made an order for the sale of the real estate of deceased for the payment of his debts, which order covers the land embraced in the trust deed, including the land sold defendant James Hemery and other lands; but the petition avers that, in consequence of the cloud upon the title of the land bought in by James by virtue of the sale and deed to him, it will be sacrificed if sold under the order; and shows that no persons have any interest in said real estate except the creditors of the estate represented by the administrator, who is one of the plaintiffs, and the other plaintiffs, who are the heirs, the widow having had her dower assigned elsewhere.

The above is a brief summary of the allegations of the petition, though it sets them forth at much greater length. The prayer of the petition seems to us to have been the chief cause of the controversy in the case, and is as follows: “Plaintiffs therefore pray that it may be ordered, adjudged, and decreed by the court, that the said deed executed by the defendant Rezin Hemery, as trustee, to the defendant James Hemery, be canceled and held for naught; that the title to the land specified in said deed pass to and vest in the estate of Walter Moore, deceased, as if said deed had never been executed; that that land and other land belonging to the estate be sold by the plaintiff, Ephraim McGlothlin, administrator, as aforesaid, for the payment of the debts of said estate, or so much thereof as may be necessary, and that the title to the land not so sold for the payment of the debts of said estate pass to and vest in those of the plaintiffs who are heirs of said Walter Moore, deceased; and that the sum of thirty-three dollars and seventy-four cents be paid to the defendant James Hemery out of the proceeds of the sale of said land specified in...