Porter v. Woods

• Court: Missouri Supreme Court
• Writing for the Court: Burgess, J.
• Citation: Porter v. Woods, 138 Mo. 539, 39 S.W. 794 (Mo. 1897)
• Decision Date: 03 April 1897
• Parties: Porter et al., Appellants, v. Woods

39 S.W. 794

138 Mo. 539

Porter et al., Appellants, v. Woods

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed and remanded.

Peak & Ball for appellants.

(1) The defendant is estopped, by the terms of the declaration of trust which he received, accepted and retained, to deny that he agreed to its terms. Glenn v. Statler, 42 Iowa 107; Mateer v. Railroad, 105 Mo. 320; James v Clough, 25 Mo.App. 147; Crawford v. Edwards, 33 Mich. 354; Spaulding v. Hallenbeck, 35 N.Y. 206; Trotter v. Hughes, 2 Kern. 74; Belmont v Coman, 22 N.Y. 438; Sinclair v. Jackson, 8 Cow 585; Atlantic Dock Co. v. Leavitt, 54 N.Y. 35; Hasenritter v. Kirschhoffer, 79 Mo. 241. (2) Defendant, after accepting the declaration of trust, his only muniment of title, and taking possession of the property and enjoying it for years, can not be allowed to repudiate the portion of his agreement which bound him to pay. Alvord v. Spring Valley Gold Co., 40 P. 27; State ex rel. v. Harrington, 100 Mo. 170. (3) Plaintiffs' rights in enforcing the assumption of this debt are precisely the same, as wide and no wider, as Oliphant's rights would be if he had paid the debt and sued defendants on their promise. Fitzgerald v. Barker, 85 Mo. 13; Jones on Mort. sec. 741. (4) Defendant and the other members of the syndicate having left the matter of consummating the purchase to their agents, both the real and apparent authority of the agents was to arrange it as they did; and it was not competent to prove any private arrangements between defendant and his agents not disclosed to Oliphant. McGeoch v. Hooker, 11 Ill.App. 649; Babcock v. Deford, 14 Kan. 408; Clydesdale Horse Co. v. Bennett, 52 Mo.App. 333; Meechem Agency, sec. 283; Samuel v. Bartee, 53 Mo.App. 587; Baker v. Railroad, 91 Mo. 152; Webster v. Wray, 17 Neb. 579; Griggs v. Selden, 58 Vt. 561. (5) The declaration of trust is a contract to pay these notes, pro tanto. Salmon Falls Bank v. Leyser, 116 Mo. 51.

Elijah Robinson for respondent.

(1) The declaration of trust was not only not in accordance with the terms of agreement, but was in direct conflict therewith; and what is called by plaintiff's counsel the assumption clause therein was inserted without the knowledge or consent of the defendant. Hence the defendant is not bound thereby. Real Estate Trust Co. v. Balch, 45 N.Y.S. 528; Kilmer v. Smith, 77 N.Y. 226; Albany Savings Institution v. Burdick, 87 N.Y. 46; Bull v. Titsworth, 29 N.J.Eq. 73; Stevens Ins. Co. v. Sheridan, 30 N.J.Eq. 23; Parker v. Jenks, 36 N.J.Eq. 398; Fuller v. Lamar, 53 Iowa 447. (2) The undertaking on the part of the defendant, set forth in the declaration of trust, whatever it may be construed to be, was intended solely for the benefit of Oliphant, and not for the benefit of the holder of the mortgage debt. Consequently plaintiffs can not maintain this suit. State v. Railroad, 125 Mo. 617; Howsmon v. Trenton Water Co., 119 Mo. 308, and authorities there cited. (3) Plaintiffs have no greater rights in the premises than would Oliphant, if he had paid off the note and brought suit on the declaration of trust. If he could not maintain suit, they can not. Ellis v. Harrison, 104 Mo. 278; Benedick v. Hunt, 32 Iowa 30; Drury v. Hayden, 111 U.S. 227. Oliphant could not have paid a fifth of the mortgage debt and have maintained a suit against defendant on the declaration of trust without tendering a clear title to plaintiff for an undivided one fifth interest in the real estate. Olmstead v. Smith, 87 Mo. 602; Ankeny v. Clark, 148 U.S. 357. This he could not do because the deed of trust covering the entire real estate would stand as an incumbrance for the remainder of the debt. (4) Even if Will Woods had been defendant's agent for this particular transaction, he was not a general agent nor was he held out by defendant as such, and, therefore, Oliphant and everyone standing in his shoes were bound to know the extent of his authority.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

In May, 1887, L. R. Moore was the owner of a lot of ground in Kansas City, Missouri, which he sold to a syndicate of which the defendant, Woods, Will S. Woods, J. W. Merrill and others were members, for the sum of $ 100,000.

The contract on the part of the syndicate was made by Woods, Mellier & Co. Will S. Woods was a member of that firm.

Moore agreed to allow Woods, Mellier & Co., two and one half per cent on the amount of the sale in the event of its consummation. Will S. Woods organized the syndicate, and by and with the consent of the other members arranged all matters of detail, with respect to its organization, and the purchase of the lot.

Twenty-five thousand dollars of the purchase money was paid in cash and by agreement between Moore and Will S. Woods who was acting in behalf of the syndicate, the deed was made to R. L. Oliphant, an employee in the office of Woods, Mellier & Co., he at the time executing to Moore three notes for $ 25,000 each, due respectively in one, two and three years, secured by deed of trust on the ground. The first note was paid by the syndicate when it became due, the other two notes were sold to Lucy A. Porter, plaintiff's testatrix, Moore indorsing them. She died after the commencement of this suit, and it was revived in the names of her executors. While in making the sale the firm of Woods, Mellier & Co. were acting as the agents of Moore and Woods & Mellier, they were at the same time acting as the agents and representatives of the syndicate in making the purchase. This however was with the knowledge of all the members of the syndicate.

Oliphant agreed with Will S. Woods to accept the deed from Moore and to make the notes -- upon the assurance of Woods and Mellier that the parties forming the syndicate would meet the payments as they became due, would not hold him responsible in any way, and that there would be a declaration of trust which each member would receive, and would be their title for the property. He made up and signed the declarations of trust for each member of the syndicate in May, 1887, and gave them to the firm of Woods and Mellier at the same time he signed the notes. The material parts of the declaration of trust are as follows: "Know all men by these presents, that whereas, L. R. Moore and wife, of the county of Jackson and State of Missouri, did, by their certain warranty deed, dated May 16, 1887, convey to Robert N. Oliphant, of said Jackson county, for the consideration hereinafter stated, the following described real estate, situated in the county of Jackson, and State of Missouri, to wit. * * *. All of which property was sold and conveyed to said Robert N. Oliphant at and for the purchase price of one hundred thousand ($ 100,000) dollars, of which purchase price the sum of twenty-five thousand ($ 25,000) dollars was paid cash in hand to the said Moore, at the time of delivery of the deed conveying the said property as aforesaid, and the balance of said purchase price was evidenced and secured by three certain promissory notes executed and delivered by said Oliphant to the said L. R. Moore, each for the sum of twenty-five thousand ($ 25,000) dollars, and becoming due and payable to the said L. R. Moore or his order, one in one year after date, one in two years after date, and one in three years after date, all said notes bearing interest from date, at the rate of eight (8) per cent per annum, according to the tenor and effect of certain interest coupons attached to said notes, and the payment of all said notes and coupons being secured by deed of trust upon all said above described property; And, whereas, of the county of , State of , did contribute and pay one fifth, that is, five thousand ($ 5,000) dollars, of the said cash payment of twenty-five thousand ($ 25,000) dollars, toward the purchase of said land, and has agreed, and does hereby agree, to further contribute and pay, when due, one fifth of all the above mentioned indebtedness and incumbrances on said property, all of which is hereby acknowledged, by the acceptance of this instrument. "And, whereas, for the convenience, and by common consent of the parties interested, the title to all said property was taken by and in the name of said Robert N. Oliphant, for the purpose of holding the same in trust, and re-selling and conveying the same. Now, therefore, this instrument is to declare and make known, that in consideration of the premises, and of the sum of one dollar to the said Robert N. Oliphant, in hand paid by the said the receipt of which is hereby acknowledged, the said Robert N. Oliphant, holds the title to one undivided one fifth interest in all said above described property, in trust for the benefit of the said his heirs or assigns, and for the purposes aforesaid, that is to say, the title to all said property shall remain in the name of the said Robert N. Oliphant until the sale thereof by the owners, and the said Robert N. Oliphant shall have full power, and in his own name, to convey the said property, or any part thereof, or interest therein, and he hereby agrees then to convey the same, and of the proceeds thereof, after payment of the said indebtedness and incumbrances, and all commissions and expenses connected with selling and conveying the same, the said his heirs or assigns shall be entitled to one fifth interest therein. And it is understood and agreed, that the first money, the net proceeds realized from sales of any of said property, shall be applied to the liquidation of said indebtedness and incumbrances thereon, until the whole be fully paid. And it is further understood and agreed, that the said , heirs or assigns, shall and will to the extent of his one fifth interest, save...