Peery v. Hall

• Decision Date: 30 April 1882
• Citation: 75 Mo. 503
• Parties: PEERY et al., Appellants, v. HALL AND RICE.
• Court: Missouri Supreme Court

75 Mo. 503

PEERY et al., Appellants,

v.HALL AND RICE.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

This was an action of ejectment for a lot in the town of Trenton, brought by Peery, Austin and Tindall against Hall and Rice. The answer consisted of a general denial and a plea of equitable estoppel. The land had been twice sold, first under a deed of trust and afterward under an execution issued upon a judgment in a suit to enforce a mechanic's lien. Plaintiffs derived title under the former sale; defendants under the latter. The deed of trust was executed and recorded after the work, for which the lien was claimed, commenced, but the sale under it took place before the sale under the lien. Pending the suit to enforce the lien the defendant in the suit died, and the suit was revived against his administrator without joining his heirs. The beneficiaries in the deed of trust, who were the plaintiffs in this suit, were not made parties, and in this suit claimed not to be bound by the judgment and sale thereunder. Upon this branch of the case the trial court found for them.

In support of the plea of equitable estoppel defendant Hall testified substantially as follows: He was one of the attorneys for the plaintiff in the lien suit. While the property was being advertised for sale under the execution plaintiff Peery, who was an attorney at law, called to see witness in relation to the conflicting claims of the parties. Peery said the question involved was one of law and could be settled without suit, and asked to see any authorities witness had to present in support of his claim; that witness showed him a decision, which Peery read and said it settled the question, adding that as plaintiffs had not been made parties to the lien suit he thought they had a right to redeem, but that the judgment was for more than the land was worth, and they, therefore, would not redeem. Witness offered to sell him the judgment, and he offered $500 for it, which witness refused. Witness understood from his talk, and thought he so stated, that plaintiffs would abandon all further claim to the property. Peery was acting as attorney for the administrator of the estate of the defendant in the lien suit and was a creditor of that estate to a large amount. After this conversation and about a week before the sale, Peery and witness had another conversation about the sale, plaintiffs' claim to the property and the title that would pass to the purchaser under the sale. Peery's object in this interview was to devise some means to make the property sell for its full value, so as to leave the other property of the estate to pay the other debts. At this time Peery said more than once that the title under this sale would be superior to plaintiffs' title, and that the purchaser could rest assured that plaintiffs would make no further claim, and talked about getting some one to bid in the property. Witness also conversed with Austin about the sale a few days before it occurred, and was advised by him to bid, saying that he thought it would be a safe investment, and that witness should buy it in to secure his fee. Austin and Tindall were both present at the sale; Tindall was next to the highest bidder. Witness thought Peery was also present; plaintiffs made no claim at the sale. A few days after the purchase by witness, he had a conversation with Tindall, in which it was agreed that plaintiffs should have the rents up to the 1st day of May, 1874, and witness should have the possession and rents after that date. Witness then told him of his purpose to remodel and improve the property, and of his plan of improvement, and asked his opinion; and he said it was the best thing witness could do. Tindall agreed to notify the tenants that day of the change of ownership, and to pay the rents to witness after the day fixed. That evening he told witness he had given the notice. At this time Tindall said something about plaintiffs' having some claim to the property, and witness again told him of his intention to improve, and said if plaintiffs were going to make any claim, that witness wanted them to do so at once, as witness could not afford to spend more money on the property if plaintiffs were going to give him any trouble....