Robinson v. Cruzen

• Decision Date: 18 February 1918
• Docket Number: No. 12012.,12012.
• Parties: ROBINSON et ux. v. CRUZEN.
• Court: Missouri Court of Appeals

202 S.W. 449

ROBINSON et ux. v. CRUZEN.

No. 12012.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

On Motion to Modify, April 3, 1918.

Error to Circuit Court, Daviess County; Arch B. Davis, Judge.

"Not to be officially published."

Suit by William W. Robinson and wife against Nathaniel G. Cruzen. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

John C. Leopard, of Gallatin, and J. W. Peery, of Albany, for plaintiff in error. Dudley, Selby & Brandom, of Gallatin, for defendants in error.

BLAND, J.

Plaintiffs, husband and wife, recovered a verdict and judgment in the sum of $300, and defendant has appealed.

Defendant's first point is that the petition stated a cause of action in equity, and the court erred in trying the cause by a jury over defendant's objection.

In plaintiffs' petition it is stated that on and prior to the 1st day of January, 1914, plaintiff William W. Robinson owned a tract of 42 acres of land in Bayless county, Mo., and that plaintiff Mary A. Robinson, his wife, owned an adjoining tract of 45 acres in said county; both of these tracts for many years had been owned by plaintiffs, and constituted their homestead; that on said date all of said land was incumbered by a first deed of trust, securing $2,000, to IL C. and W. A. Culver, a second deed of trust, securing $768.95, in favor of the defendant, N. G. Cruzen, and a third deed of trust in the sum of $728.21, in favor of Hamilton Savings Bank; that all of said notes were signed by both plaintiffs; that defendant, N. G. Cruzen, had been the business adviser and confident of plaintiffs for more than 10 years past, and that a fiduciary relation existed between them; that neither of the plaintiffs could read or write, nor were they familiar with legal terms, but were compelled to rely upon others, and relied upon defendant to truly represent such matters; that plaintiffs had concluded that it would be better for them to sell the 42 acres, and take the proceeds therefrom, and discharge the indebtedness on all of the lands in so far as possible, and to keep the 45 acres as their homestead, mortgaging the same for enough to make up the difference between the amount to be realized from the sale of the 42 acres and the amount of their indebtedness. With this in view plaintiff William W. Robinson went to see the defendant to consult him in reference to the matter. The defendant advised him that the best way to arrange the deal would be to have the Culvers foreclose under their deed of trust, and that he (Cruzen) would buy in the land and hold it for plaintiffs; that defendant would then sell the 42 acres for plaintiffs, and, if it did not bring enough money to pay all the debts, that he (Cruzen) would loan plaintiffs on the 45 acres that was to be kept as a homestead whatever balance might be necessary. Plaintiff then advised defendant that he knew nothing about such transactions, and he trusted all to the defendant, and defendant then said he would attend to it. The petition further states that the defendant, without further advising the plaintiffs and without their knowledge, caused the land to be advertised, not under the Culver deed of trust, but under the one held by the defendant, in a paper that had little or no circulation in that part of the county in which the land lay; that plaintiff William W. Robinson learned of the advertisement, and was present at the sale, and immediately before the same had a conversation with the defendant; that defendant then again agreed to buy in said land at said sale for the plaintiffs, and to hold the same for the plaintiffs' use and benefit, and repeated the agreement in reference to the disposition of the land, as already set forth; that defendant at the sale bid in the land upon the only bid made, and by reason thereof he became a trustee for plaintiffs for the land; that said land was worth $8,000, and had a value in excess of the incumbrances of $4,000; that thereafter defendant sold and conveyed the land to another person, thus putting it out of his power to reconvey the land to plaintiffs, or for the plaintiffs to obtain title thereto; that by reason of all these facts—

"The plaintiffs have been wrongfully deprived of the value of their land; that notwithstanding the defendant's promise and agreement to buy said land and hold the same for the plaintiffs as trustee for the use and benefit of the plaintiffs, said lands, and all thereof, were so conveyed by the defendant to a stranger without the knowledge or consent of the plaintiffs, with the purpose entertained by the defendant at the time and in such manner as to deprive the plaintiffs [of the opportunity] to recover the title to said land or any part thereof, or to recover said land in any way; and that the defendant received for such conveyance to a stranger a large sum of money, and has thereby converted to his own use all of the value of said land in excess of the first and second mortgages thereon, and has thereby had and received, taken, had, and used the property of the plaintiffs to the value of $8,000 for his, the defendant's, own use and benefit, and has failed and refused to account for the same to these plaintiffs, to their damage in the sum of $8,000, for which they pray judgment and for costs."

The answer was a general denial, and a statement that the defendant had sold the property under his deed of trust because the interest was due and plaintiffs would not pay it; that the first deed of trust was about to be foreclosed on account of plaintiffs' default of it, and that the defendant had his deed of trust foreclosed to protect his interests, without any agreement to reconvey the land to plaintiffs, or to do the things alleged in plaintiffs' petition.

As we view the petition, it is a cause of action for damages for a breach of contract; the breach consisting of the alleged failure of the defendant to carry out the agreement alleged in the petition. The damages sought to be recovered was the loss of plaintiffs' rights or interest in the real estate caused by the defendant converting the property to his own use instead of using it for the purposes provided in the alleged agreement. Whether these rights or interests of plaintiffs were of a legal or equitable nature would not affect their right to bring a suit at law as hereafter shown.

While the petition alleged that when the defendant bought the property there was a resulting trust in favor of the plaintiffs, yet it further alleged that the property was conveyed by defendant to a stranger, putting it beyond the power of plaintiffs to get back the land. The petition is not for money had and received by defendant from the stranger or the proceeds of the sale of the land by Cruzen to the stranger. These are not asked for. Nor does the petition ask that a resulting trust be declared in favor of plaintiffs in the property or its proceeds. While plaintiffs alleged a fiduciary and trust relation between themselves and the defendant, and on the trial proved the same, and submitted the cause to the jury upon the assumption that they were required to prove such relation, we think that plaintiffs assumed an unnecessary burden, and that it was not necessary to plead and prove any trust or fiduciary relation in this case. Taking the petition as a whole, it is apparent that it is a cause of action for damages for breach of contract, and as such is a suit at law. And this is true even if the damages asked were for the destruction of an equitable right. A man may have a legal remedy for the destruction of an equitable right. Missouri Real Estate Syndicate v. Sims, 179 Mo. 679, 78 S. W. 1006; Tobener v. Hassinbusch, 56 Mo. App. 591; Morse v. Bates, 99 Mo. App. 560, 74 S. W. 439; Sherwood v. Saxton, 63 Mo. 78.

Defendant urges that the court erred in admitting evidence as to the circulation of the paper, in which the notice of sale was published, in the immediate neighborhood where...