McNew v. Booth

• Decision Date: 29 February 1868
• Citation: 42 Mo. 189
• Parties: ALLEN MCNEW, Appellant, v. ELIZABETH BOOTH, Respondent.
• Court: Missouri Supreme Court

42 Mo. 189

ALLEN MCNEW, Appellant,

v.ELIZABETH BOOTH, Respondent.

Supreme Court of Missouri.

February Term, 1868.

Appeal from Buchanan Circuit Court.

Woodson & Jones, for appellant.

I. It is clearly shown that the property was sold by the trustee with the distinct understanding that it might be redeemed; and, such being the agreement, the title was held in trust by defendant. (Brown on Fr., § 34, and cases referred to; 1 Watts, 214; 12 Mo. 30.)

II. A “reasonable time,” as mentioned in this agreement, and its determination, might depend upon the circumstances of the parties; but a trust created by parol cannot be revoked, altered, or extinguished. (Hill on Trust. 60.)

III. The property being held in trust by the defendant, such trust could not be terminated without some act on part of defendant. (See same authority.)

IV. The refusal of defendant to permit plaintiff to redeem, under the circumstances, is a fraud upon plaintiff, and the deed should be set aside. (Hill on Trust. 144-7, 151; 12 Mo. 30; 12 Wend. 41.)

Ensworth & Bassett, for respondent.

I. The allegations in the appellant's petition do not amount to a contract, but merely to a privilege (26 Mo. 52-53.) There is

no consideration alleged as passing from appellant to respondent to uphold the allegations as a contract.

II. Appellant did not apply to redeem the lot within a reasonable time. (4 U. S. Dig. 86, 87, No. 548; 3 Bibb, 331; Chitty on Cont. 730.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit in the nature of a bill in equity, brought by the plaintiff against the defendant, to set aside a conveyance made at trustee's sale, upon the payment of a certain amount of money which the plaintiff owed to the defendant, and which the property was conveyed to satisfy. It appears from the record that in 1858 the defendant loaned to the plaintiff the sum of four hundred and eighty dollars, which was secured by a deed of trust on a lot situated in Smith's addition to the city of St. Joseph. The loan was made on a credit of twelve months, and the plaintiff, being in embarrassed circumstances, was unable to pay; therefore, on the 13th day of May, 1863, the defendant caused the property to be sold under the deed of trust, and became the purchaser of the same for the sum of five hundred dollars. It is conceded that this was the full value of the lot at the time. The plaintiff states in his petition that, prior to the sale, the defendant told him that she was having the property sold, that she might have its legal title in herself, but that she did not intend to hold it against him or any other person he might convey it to, provided the amount of the debt and the interest thereon were paid to her in a reasonable time, and that he need not give himself any uneasiness about it, if he could get the money and pay her in any reasonable time. The petition further avers that, resting under assurance thus given by defendant, the plaintiff made no effort to prevent the sale of his property, or to get persons to attend the sale, or to make the property bring more than the defendant saw fit to bid for it--one or both of which he would have done had it not been for the understanding he had with the defendant. He also states that, in the spring of 1865, within a reasonable time, he offered to redeem the property, but defendant objected, and that in April, 1866, he tendered the defendant, in legal-tender notes of the United States, the amount of her debt and interest, and demanded a reconveyance of the property, when she refused to receive the money or convey the property.

The defendant, in her answer, states that she purchased the lot in good faith, with the sole purpose of investing herself with the title to her own proper use and behoof, and that she was not in any way bound, by promise or otherwise, to let the plaintiff have the lot, and that he made no effort to obtain a conveyance of the same till near three years had passed after the sale. She admits that she stated in a conversation that she did not intend to hold the title against the plaintiff, or any other person to whom he might convey it, if the amount he owed her was paid in a reasonable time, and says that she would have been glad if he had paid the money and taken the lot for fifteen or eighteen months after the sale, for she could not sell it for more than five or six hundred dollars during that time. She denies that she made any assurance or representation to plaintiff that should in any manner have prevented him from paying his debts and protecting his property by getting persons to attend the sale or otherwise. On the trial, both the plaintiff and defendant were sworn as witnesses, and their evidence was in substantial corroboration of the petition and answer. There was some other testimony given, but not materially changing the effect or purport of that given by the parties. It showed an understanding by the witnesses that the plaintiff was to have the property conveyed back to him, if within a reasonable time he paid the...