Phillips v. Hardenburg

• Decision Date: 10 May 1904
• Parties: PHILLIPS et al., Appellants, v. HARDENBURG et al
• Court: Missouri Supreme Court

80 S.W. 891

181 Mo. 463

PHILLIPS et al., Appellants, v. HARDENBURG et al

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Moniteau Circuit Court. -- Hon. Jas. E. Hazell, Judge.

Reversed and remanded.

L. F Wood for appellants.

(1) The court erred in sustaining the demurrer and dismissing the bill. The distinction between an equitable mortgage and a trust is that so long as a debt is secured it is an equitable mortgage, and if it secures the payment of money it is a mortgage, no matter what form it may assume. Walse v Drummit, 21 Mo. 325; Sewell v. Kedler, 13 Mo.App. 189; Schradski v. Allbright, 93 Mo. 42. (2) Courts of equity early held that an equitable mortgage was not within the statute of frauds and might be proved by parol. Story's Equity Jurisprudence, 231, sec. 1; same, 2 vol., 1018 B., and 1019; O'Neill v. Capelle, 62; Schradski v. Allbright, 93 Mo. 43.

S. C Gill and R. M. Embry for respondents.

(1) Plaintiffs' brief indicates that they expect to recover on the theory of an equitable mortgage. Their petition attempts to set forth facts sufficient to constitute an express trust. The words used in the petition determine upon what theory appellants seek redress. Mulock v. Mulock, 156 Mo. 438. (2) If plaintiffs recover on the theory of an express trust, it must be proven by writing; it is equally essential that the petition allege that an agreement to hold property in trust is in writing and signed by the parties affected thereby, or no case is stated. R. S. 1899, sec. 3416; Curd v. Brown, 148 Mo. 92; Rogers v. Ramey, 137 Mo. 607; Hillman v. Allen, 145 Mo. 638; Mansur v. Willard, 57 Mo. 347; Miltenberger v. Morrison, 39 Mo. 72. (3) Plaintiffs' petition fails to state facts sufficient to constitute a cause of action, in behalf of the widow, Nancy Phillips, for dower, for the reason that it is not stated therein that George Phillips, her husband, died seized of an estate of inheritance in the land sought to be impressed with dower. R. S. 1899, sec. 2933; Garrison v. Young, 135 Mo. 203. (4) The understanding between Phillips and Hardenburg, as alleged in the petition, merely gave Phillips the right to repurchase. If this is true, the law deals only with the contract and requires the same to be executed with precision and punctuality. He will not be allowed to redeem after a lapse of almost three years, as shown in the petition. 2 Washburn on Real Property (5 Ed.), secs. 14 and 17; Jones on Mortgages (5 Ed.), sec. 1917, and secs. 261 and 265; Slowey v. McMurray, 27 Mo. 113; Medsker v. Swaney, 45 Mo. 275. (5) The verbal contract between Phillips and Hardenburg, if any there was, is within the statute of frauds. Neither will continued possession nor part payment of consideration take a sale of land out of the statute of frauds. R. S. 1899, sec. 3414; Rogers v. Ramey, 137 Mo. 598; Emmell v. Hayes, 102 Mo. 186. (6) The reformation of the contract of lease, the effort to establish a trust, and the request to adjudge the dower rights of the widow are distinct and separate matters, affecting distinct and separate parties, and therefore can not be united in the same bill. Clark v. Ins. Co., 52 Mo. 272; Liney v. Martin, 29 Mo. 28; Coal Co. v. Coal Mining Co., 141 Mo. 149; Stalcup v. Garner, 26 Mo. 72; Bliss, Code Pleading, sec. 110; Mullen v. Hewitt, 103 Mo. 639.

OPINION

GANTT, P. J.

This is an appeal from a judgment sustaining a demurrer to plaintiff's petition. The plaintiffs declining to plead further, final judgment was rendered against them.

"Plaintiff states that on the twenty-fifth day of February, 1888, George Phillips was the owner and in possession of the following described real estate situated in Moniteau county, Missouri to-wit: all of the northeast quarter of section 31, township 43, range 15, except five acres in the southwest corner of said quarter section, and also except fourteen acres, being a strip on the north side of said quarter section; and all of the northwest quarter of the southeast quarter of said section 31 except ten acres in the northwest corner of the said last described quarter section, containing in all one hundred and seventy-one acres; and being so the owner in possession thereof the said George Phillips joining with the plaintiff Nancy Phillips, who was then and there his wife, by a deed of trust, a certified copy of which is herewith filed, the original not being in possession of plaintiffs and can not be filed, conveyed said real estate to the defendant, A. D. Snyder, in trust to secure to the defendant, S.W. Hardenburg, the payment of a promissory note made by said George Phillips to the said S.W. Hardenburg and bearing interest at the rate of eight per cent; said note being for the sum of fourteen hundred dollars and being fully described in said deed of trust; that after the making of said deed said George Phillips contracted and sold said land to the plaintiff, Charles M. Phillips, and the said plaintiff, Charles M. Phillips, took possession of said land under said contract with the said George Phillips, and has ever since remained in possession thereof and has made valuable and lasting improvements thereon; that afterwards on the third day of February, 1897, the said George Phillips died intestate, leaving as his sole and only heirs, the plaintiff, Nancy Phillips, his widow, and the plaintiff, Charles M. Phillips, his son, and the defendant, James Nail, a son of the deceased daughter of the said George A. Phillips, and Ed Phillips, George A. Phillips, Elmer Phillips and Lizzie O'Neal, children of the said George A. Phillips, who have affirmed the sale of said real estate made by the said George Phillips prior to his death, and now claim no interest in said land; that, by the terms of said sale, the plaintiff, Charles M. Phillips, assumed the payment of said note secured by said deed of trust, which fact was well known to the defendants, S.W. Hardenburg, and A. D. Snyder, and the said S.W. Hardenburg accepted the plaintiff Charles M. Phillips as payor of the debt secured by the deed of trust; that after the death of the said George Phillips, the defendant A. D. Snyder, in pursuance of the power given in said deed of trust, advertised said real estate for sale, and on the twenty-third day of November, 1897, sold the same; that at and prior to said sale, the plaintiff Charles M. Phillips being the equitable owner of said land subject to said deed of trust, it was mutually agreed between him and the defendants S.W. Hardenburg and A. D. Snyder, that Charles M. Phillips should bid off the land and execute his own note and deed of trust of whatever might remain due on the said note; that the said agreement was well known to the persons assembled at the said sale and for that reason they did not bid at the sale, whereby said plaintiff Charles M. Phillips was enabled to bid off the land at the sum of sixteen hundred and seventy-five dollars, and the said real estate was at the time worth more than two thousand dollars; that defendant Hardenburg claimed at the time that there was due him on the note sixteen hundred dollars and that the costs would be thirty dollars and that the back taxes on the land which Hardenburg insisted should be included in the amount at which plaintiff Charles M. Phillips bid off the land as aforesaid; that after the sale the said defendant A. D. Snyder, as trustee, instead of conveying said land to plaintiff Charles M. Phillips, by his deed dated November 23, 1897, and recorded in the recorder's office in Moniteau county in deed book No. 16, page 179, conveyed said real estate to the defendant S.W. Hardenburg, and the said Hardenburg agreed to hold the same in trust for the use of this plaintiff, Charles M. Phillips, subject to the payment of said note, costs and back taxes; and upon the payment of said note, costs and back taxes, to convey the said land to the said Charles Phillips; that plaintiff, Charles M. Phillips at the time paid said Hardenburg thirty dollars as costs of said sale; that in truth and in fact the cost of sale was only twenty-five dollars, and five dollars should have been credited on the note; that afterwards in December, 1897, the said Hardenburg being indebted to the plaintiff, Charles M. Phillips, in the sum of fifty-four dollars, said Hardenburg agreed instead of paying the money to this plaintiff or of crediting the same on this note, to use the same in payment of back taxes accrued on the land before the sale, and plaintiff supposes and believes he did use the same in payment of said back taxes. That on the twenty-ninth of June, 1898, plaintiff, Charles M. Phillips, paid to the defendant S.W. Hardenburg on said note five hogs at the price of twenty-two dollars and fifty cents, and the said Hardenburg agreed to credit same on the said note, and on the twenty-ninth of November, 1898, said plaintiff paid to the defendant, Hardenburg the sum of one hundred and seventy-five dollars on said note.

"That the deed made by the defendant A. D. Snyder, as trustee, to the defendant, S.W. Hardenburg, as aforesaid, is not in the possession or under the control of these plaintiffs and can not be filed herewith, but a certified copy thereof is herewith filed. At the time of said sale, the plaintiff, Charles M. Phillips, was in possession of said real estate and has ever since been in possession thereof.

"That on the third day of April, 1900, the defendant S.W Hardenburg instituted a suit against the plaintiff Charles M. Phillips in the circuit court of Moniteau county, Missouri, for the possession of said land. The said suit was compromised and settled upon the following terms, to-wit: that in consideration that the plaintiff Charles M. Phillips would pay the costs of said suit and would pay the said defendant Hardenburg the...