Sumrall v. Chaffin

• Decision Date: 31 October 1871
• Parties: SUMRALL, TRUSTEE OF DOBYNS et al., Appellants, v. EDWARD CHAFFIN AND ALBERT TODD, Respondents.
• Court: Missouri Supreme Court

48 Mo. 402

SUMRALL, TRUSTEE OF DOBYNS et al., Appellants,

v.EDWARD CHAFFIN AND ALBERT TODD, Respondents.

Supreme Court of Missouri.

October Term, 1871.

Appeal from St. Louis Circuit Court.

Geo. P. Strong, for appellants.

J. N. Litton, for respondents.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in equity to set aside a sale made by a trustee, and for an account of the rents and profits of the property sold.

The averments in the petition are, in substance, that on the 30th of May, 1859, Edward Dobyns and wife made a deed of trust to Albert Todd to secure the payment of $5,000 loaned to Dobyns by defendant Chaffin, together with six interest notes for $250 each; that the principal note was due in three years and the interest notes were payable semi-annually; that the property was subsequently conveyed to Sumrall, in trust, subject to the debt of Chaffin, which was a prior encumbrance; that Dobyns was the plaintiff's agent, attending to the payment of the interest notes; and that, being on the eve of departing from the city of St. Louis, where the property was situated, and the principal note being past due and some of the interest notes remaining unpaid, he went to the defendant Todd and made a contract with him, as trustee in the deed and agent of Chaffin, by which Todd agreed that no steps should be taken during Dobyn's absence, either to enforce said deed of trust or to collect the notes, except out of certain rents; that the conditions of the agreement with Todd were that Dobyns should turn over certain rents to him, yielding $132 monthly, and amounting to $1,584 per annum; that Dobyns complied with this agreement, and that the rents were sufficient to pay the taxes, interest, insurance, and part of the principal of the debt, but that Todd would not consent to place the balance to the credit of the principal, and it was therefore agreed that he should hold it in his hands for the plaintiff. It is alleged that, relying on this understanding and agreement, Dobyns left the city, and that Todd and Chaffin, by their conduct in receiving the rents and agreeing to apply and appropriate them, lulled Dobyns into security; and that, soon after he had left, Todd, in fraud of the plaintiff's rights, and in violation of the contract entered into, advertised and sold the property under the deed of trust, and purchased the same for Chaffin.

The defendants answered jointly, and substantially denying the allegations set out in the petition. They virtually say that Dobyns did not put any such amount of rents in the hands of Todd, and knew that he did not; that he pretended and professed to do so, but in this pretense and profession he was guilty of bad faith.

The cause was heard upon the pleadings, exhibits and proofs, and the court below dismissed the petition and awarded judgment for the defendants, and the plaintiffs have brought up the case for review by appeal.

A careful reading of all the proofs adduced and preserved in the record shows beyond all doubt that the evidence does not sustain the charges contained in the plaintiff's bill. When called upon to testify, Dobyns, who was the principal and only material witness for the plaintiff, wholly fails to show that there was any agreement made by Todd not to sell the property under the deed of trust and in his absence. He only says--and this is his strongest language--“I was satisfied, from what transpired, Mr. Todd would not sacrifice my property.” He relied upon Mr. Todd's indulgence, but...