Sprague v. Carroll

• Decision Date: 03 July 1916
• Docket Number: No. 17647.,17647.
• Citation: 188 S.W. 63
• Parties: SPRAGUE v. CARROLL et al.
• Court: Missouri Supreme Court

188 S.W. 63

SPRAGUE v. CARROLL et al.

No. 17647.

Supreme Court of Missouri, Division No. 1.

July 3, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Suit for specific performance by Oliva Sprague against Carey M. Carroll and others. Judgment for plaintiff, and defendant Orlando L. Sprague appeals. Affirmed.

Action in equity for the specific performance of a written contract relating to real estate. Plaintiff avers that she and Carey M. Carroll entered into a written agreement by which they settled all matters between themselves, and by such agreement it was agreed that the said Carey M. Carroll was indebted to plaintiff in the sum of $5,500, which said sum the said Carroll was to secure by giving a deed of trust on certain lands in said contract described, subject only to a prior mortgage or deed of trust for $16,000. The petition further alleges that the defendant Carroll had refused to carry out the contract, and, for one of her reasons, urged that Orlando L. Sprague claimed some equitable interest in the lands involved, as well as some interest in the interest that plaintiff had, and such petition asked that Orlando L. Sprague be required to set up his interest. The title of record to the land involved stood in the name of Carey M. Carroll. Defendant Orlando L. Sprague filed a lengthy answer and cross-bill, by which he undertook to state facts sufficient to show that whilst the record title of the land involved was in Carey M. Carroll, yet in fact she held it in trust for the three; i. e., plaintiff, Oliva Sprague, and defendants Carey M. Carroll, and Orlando L. Sprague. He avers that Carey M. Carroll at one time had a half interest in the property, and that he and plaintiff had the other half interest. He avers that later an agreement was made by which the property was to be held for all three, as we take it, either in equal parts, or in proportion to what each had put into it. The gist of the answer and cross-bill is the establishment of a trust, and an accounting between them, to the end that their respective interests in the trust estate could be determined. In other words, he claims that whilst Carey M. Carroll is apparently vested with the legal title to the lands effected by the contract sought to be specifically enforced, yet in fact and in equity she holds said title for the benefit of the three parties named, supra, conceding that Carey M. Carroll's interest was one-half, at one time, but alleging subsequent acts which changed this ratio later. Defendant Carroll pleads: (1) Want of consideration for the contract; (2) that plaintiff had falsely represented that she was in equity owner of one-half of the real estate, when in fact she was not, and then set out the claim of Orlando L. Sprague. She prays for the cancellation of the contract. Replies put in issue the matters contained in the answer and cross-bills. Upon a full hearing of the facts, the chancellor nisi decreed the specific performance of the contract, and from this decree Orlando L. Sprague alone has appealed. Other applicable facts will be given in the course of the opinion.

Kenneth McC. De Weese, of Kansas City, for appellant. Beardsley & Beardsley, of Kansas City, for respondent.

GRAVES, P. J. (after stating the facts as above).

I. Orlando L. Sprague claims that his cross-bill was not disposed of by the decree. The chancellor made a short finding of facts as a part of the decree, and these findings, omitting the description of the property, read:

"That on the 24th day of June, 1908, defendant Carey M. Carroll executed her note, payable to Oliva Sprague, the plaintiff herein, for the sum of $21,850, and to secure the same executed a deed of trust on the following described property, lying in Jackson county, Mo., to wit. * * * That said note was indorsed in blank by said Oliva Sprague, and is now in possession of defendant W. S. Flournoy, trustee. That on the 23d day of December, 1910, defendant Carey M. Carroll made and delivered to one Ethel Kinsey, a single woman, her certain promissory note for the sum of $12,500, which note was secured by deed of trust on the following property in Jackson county, Mo., to wit. * * * Said last-named note was indorsed in blank by Ethel Kinsey, payee therein, and delivered to said W. S. Flournoy, trustee, That said note was in fact so executed and indorsed for the accommodation of said Carey M. Carroll, and said Ethel Kinsey has no beneficial interest whatsoever in said note. That said Carey M. Carroll is indebted to defendant William H. Harrelson in the sum of $16,000, with interest thereon from December 22, 1911, on $3,000 thereof, and from December 22, 1911, on $13,000 thereof, all at the rate of 6 per cent. annual, payable semiannually, and said two notes for $21,850 and $12,500 are held by said W. S. Flournoy as collateral security for said indebtedness of $16,000 and interest due from said Carey M. Carroll as aforesaid. That defendant Carey M. Carroll, in settlement of all of plaintiff's claims against her, including said note for $21,850 executed the instrument sued on herein, and that there is owing at this time from defendant Carey M. Carroll to plaintiff, Oliva Sprague, on said instrument, the sum of $5,965.20. That Carey M. Carroll is owner of the property in question herein, and in paragraph (IV) hereinafter described subject to the liens herein declared that defendant Orlando Sprague has no title to or claim against the real estate herein described under the issues herein made and has no right of possession in and to said real estate described under the issues herein made and has no right of possession in and to said real estate. That plain...