Rock Island Implement Co. v. Marr

Decision Date12 March 1902
Citation168 Mo. 252,67 S.W. 586
PartiesROCK ISLAND IMPLEMENT CO. v. MARR et al.
CourtMissouri Supreme Court

Appeal from circuit court, Dekalb county; A. D. Burnes, Judge.

Bill by the Rock Island Implement Company against Katharina Marr and others. From a decree sustaining a demurrer to the complaint, plaintiff appeals. Dismissed.

Jas. C. Williams, Frank Costello, and L. A. Laughlin, for appellant. Hewitt & Blair, for respondents.

BRACE, P. J.

This is an appeal from a judgment of the Dekalb county circuit court sustaining a demurrer to the plaintiff's second amended petition, in which, for a cause of action, it is alleged: "That on the 13th of November, 1896, George Marr, Sr., died testate, seised of the W. ½ of the N. E. ¼ of section 19, township 58, range 31, in said county, subject to a deed of trust executed by the said testator and wife, dated August 4, 1894, conveying said tract to defendant Conrad Kochan in trust to secure the payment of a promissory note executed by him, and payable to defendant Henry Kolb for the sum of $1,680.44, with interest at 7 per cent. per annum. That by his will said testator devised said real estate to his wife, defendant Katharina Marr, `during her lifetime, or as long as she remained his widow, but at her death or marriage said real estate reverted to the defendants George Marr, Simon Marr John Marr, and Anna Marr,' — now Anna Myers, wife of John C. Myers, — his children. That said will was duly admitted to probate, and letters testamentary thereon duly granted and issued to said George Marr, Jr., the executor appointed by said will, which were afterwards revoked, and letters of administration with the will annexed were duly granted to the said defendant Conrad Kochan. That at the time of the death of the said George Marr, Sr., he was indebted to plaintiff. That on the 8th of February, 1897, its claim thereon was duly presented to the probate court, and allowed for the sum of $2,154.69 and 8 per cent. interest per annum, and placed in the fifth class of demands against said estate. That afterwards the said defendant Conrad Kochan, trustee, as aforesaid, advertised said real estate for sale under said deed of trust, and on the 17th day of September, 1897, sold the same to the defendant Katharina Marr, and as such trustee executed and delivered to her his deed therefor, which deed is dated September 17, 1897, and was filed for record the same day in the recorder's office of Dekalb county. That said sale under said deed of trust was fraudulent, and in violation of the rights of this plaintiff, in this, to wit: That at the time of the making of said sale the defendant Conrad Kochan was administrator of the estate of the said George Marr, Sr., and as such administrator his duties were inconsistent with his duties as trustee under said deed. That said defendant conspired with the defendant Katharina Marr to make said sale in pretended compliance with the terms of said deed of trust, at which sale said Katharina Marr could purchase said real estate for an inadequate consideration, whereby the rights of plaintiff and other creditors of the estate of George Marr, Sr., whose claims had been proved and allowed by said probate court, should be cut off. That prior to the sale under said deed of trust said Conrad Kochan was apprised by an agent of plaintiff of plaintiff's intention to protect its lien on said real estate at any sale that should be made under said deed of trust, and that said Kochan agreed with said agent to notify him or plaintiff when there should be a sale under said deed of trust; but in pursuance of said fraudulent scheme and design said Kochan did not notify plaintiff of said sale. That plaintiff relied upon this agreement with said Kochan and did not learn of said sale until after it had taken place. That said sale was made at an unusual hour of the day, so as to prevent competition in bidding, in that it was made at 10 o'clock in the forenoon, when it had long been customary in and around...

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50 cases
  • State ex rel. Thompson v. Terte, 40241.
    • United States
    • Missouri Supreme Court
    • December 8, 1947
    ...S.W. (2d) 625; McCoy v. Simpson, 344 Mo. 215, 125 S.W. (2d) 833; Hays v. Dow, 237 Mo. App. 1, 166 S.W. (2d) 309; Rock Island Implement Co. v. Marr, 168 Mo. 252, 67 S.W. (2d) 586; Ford v. Ford, 24 S.W. (2d) 990; Cox v. Frank L. Schaab Stove & Furn. Co., 332 Mo. 492, 58 S.W. (2d) 700; Hodges ......
  • State ex rel. Thompson v. Terte
    • United States
    • Missouri Supreme Court
    • December 8, 1947
    ... ... Dow, 237 Mo.App. 1, 166 ... S.W.2d 309; Rock Island Implement Co. v. Marr, 168 ... Mo. 252, 67 S.W.2d 586; Ford v ... ...
  • State ex rel. Fielder v. Kirkwood
    • United States
    • Missouri Supreme Court
    • April 2, 1940
    ... ... St. L. & Sub. Ry ... Co., 154 Mo. 428, 55 S.W. 454; Rock Island Imp. Co ... v. Marr, 168 Mo. 252, 67 S.W. 586. (2) Relator stated ... ...
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    • United States
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    • April 2, 1940
    ... ... 1140; Russell v. St. L. & Sub. Ry. Co., 154 Mo. 428, 55 S.W. 454; Rock Island Imp. Co. v. Marr, 168 Mo. 252, 67 S.W. 586. (2) Relator stated a ... ...
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