Taylor v. Von Schroeder

• Decision Date: 25 May 1891
• Citation: 16 S.W. 675,107 Mo. 206
• Court: Missouri Supreme Court
• Parties: TAYLOR et al. v. VON SCHROEDER.<SMALL><SUP>1</SUP></SMALL>

16 S.W. 675

107 Mo. 206

TAYLOR et al. v. VON SCHROEDER.¹

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

SPECIFIC PERFORMANCE — EXECUTORY AGREEMENT — CONSIDERATION — STATUTE OF FRAUDS — PART PERFORMANCE.

1. The owner of land lived on it with her married daughter, the plaintiff. The land was subject to a deed of trust to secure a debt to defendant. For the purpose of having the land transferred to plaintiff free from the claims of the mother's creditors, plaintiff's husband proposed to defendant that the latter should have the land sold under the deed of trust, bid it in, and then deed it to plaintiff on her paying interest and taxes and executing another deed of trust for the principal. Defendant said she would willingly do it, "but you will have to see Mr. P., the trustee," but, if the property was sold, she would not bid more than the debt. The plaintiff's husband did not again see either defendant or the trustee until the day before the sale, when he asked defendant to withdraw the property from sale. She referred him to the trustee, who refused to do so without a written order from defendant. At the sale plaintiff's husband again asked defendant to stop the sale, but she refused to do so. Plaintiff's husband then consented that the property be sold, if the purchase money should be required to be paid within one hour. This was announced as a condition of the sale, and the property was bid in for defendant, who told plaintiff's husband that, if he proposed carrying out the agreement, he must see Mr. P. Held, that the evidence did not establish a completed agreement on the part of defendant, but her consent to the plaintiff's proposal was conditional on the approval of the trustee.

2. The alleged agreement could not be specifically enforced unless established by clear and satisfactory evidence.

3. The agreement was in fraud of the creditors of the plaintiff's mother, and could not be enforced in a court of equity.

4. The agreement was void under the statute of frauds: and though plaintiff's mother made a formal transfer of possession to the plaintiff, who repaired the fences at a cost of $200, and sold some property to raise money to pay interest and taxes, there was no part performance to take the agreement out of the statute of frauds.

5. The agreement was wholly executory, and without any consideration to support it.

6. The execution of the agreement having been made contingent on the defendant's purchasing the property for the amount of his debt, and the plaintiff having no interest in the property independent of the agreement, she is in no condition to complain that the sale was so managed as to bring less than the property should have been sold for.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Thoroughman, Christian & Priest, H. D. Laughlin, and R. L. McLaren, for appellants. Kehr & Tittman and Cecil V. Scott, for respondent.

BRACE, J.

This is an action by petition in the nature of a bill in equity for the specific performance of an alleged parol contract for the conveyance of a tract of land, known as the "Mount Farm," in St. Louis county, containing about 450 acres. On the 20th of August, 1872, William C. Taylor, being the owner, with his wife, Mary L. Taylor, executed a deed of trust conveying said land to William Pettis and Charles Parsons, trustees to secure the payment to Frederick von Schroeder of seven promissory notes, — one principal note of $20,000, payable 3 years after date, and six interest notes, each for $1,000, due, respectively, in 6, 12, 18, 24, 30, and 36 months after date; all of said notes bearing interest at the rate of 10 per cent. per annum after maturity; the grantors covenanting to pay all the taxes to be thereafter assessed against the property, and any failure to do so to mature said notes. Afterwards, on the 27th of October, 1876, the said William C. Taylor conveyed, subject to the deed of trust, said land to Marcus A. Wolff, in trust for the sole and separate use of his said wife, Mary L. Taylor. Mrs. Mary L. Taylor resided in the mansion-house on said farm, occupying about 30 acres in connection therewith, as her home, the remainder being rented to tenants, and yielding a rental of about $1,300 per annum. Frederick von Schroeder having died, his widow, the defendant herein, as his legal representative, became the holder of the notes secured by said deed of trust. The interest notes seem to have been paid as they matured, and the interest on the principal note paid up to August, 1876, (the time of payment of the principal note having been extended on the 10th of August, 1875, to August 20, 1876.) The latter note, and interest thereon from the date last aforesaid, remaining unpaid, together with the taxes for the years 1872, '73, '74, '75, and '76, inclusive, the defendant, a short time prior to March 6, 1877, directed the trustee to sell the land for the payment of the debt. They accordingly advertised the land for sale at public auction by virtue of said deed of trust, and on the 29th of March, 1877, the same was sold in pursuance of the terms of said deed of trust, and the defendant became the purchaser thereof at the price of $21,460, — about the amount of the debt, interest, and costs. The additional amounts she paid to redeem the land from unpaid taxes made the whole cost of the property to her $24,291.36. Several witnesses were introduced on each side, who gave opinions of the value of the land at the date of the sale, ranging in their estimates from $60 to $150 per acre. Some time after the sale the defendant obtained possession of part of the land by attornment of some of the tenants, and of the remainder by an action of ejectment in the circuit court of St. Louis. To this action of defendant, in which the plaintiff Mortimer L. Taylor, husband of plaintiff May L. T. Taylor, and others were parties defendant, the said May L. T. Taylor, plaintiff, became a party, and in a separate answer set up as a defense thereto the same contract which she now seeks to have specifically enforced by this action. From the judgment rendered against the defendants in the ejectment suit they appealed to the St. Louis court of appeals, but, failing to give a supersedeas bond, the defendant herein had her writ, and was put in possession. The court of appeals affirmed the judgment of the circuit court, but upon appeal to this court the judgment against the plaintiff herein May L. T. Taylor and her mother, Mary L. Taylor, was reversed for the reason that they were married women, and not proper parties to the suit, and affirmed as to their husbands and the other parties defendant in that suit. The contract set out in the petition, which plaintiffs now seek to have enforced, is substantially that, at some time before the sale under the deed of trust, Mary L. Taylor having made an agreement with her daughter, the plaintiff May L. T. Taylor, to convey to her the real estate in question in consideration of love and affection, and that her daughter and her husband would provide a home for her during her natural life, the defendant, in order to effectuate said purpose, entered into an agreement with the said May L. T. Taylor, by which it was agreed that defendant should cause the land to be sold under said deed of trust, and at said sale would purchase and thereafter convey the same to the plaintiff May L. T. Taylor, and the said May L. T. Taylor with her husband would execute a note and a deed of trust upon the property to secure the payment of $20,000, and pay all accrued interest and taxes, and costs of the sale, and any other moneys that might be found to be due on said real estate, except the said sum of $20,000, so to be secured by said deed of trust. The petition then avers, in substance, that the sale under the trust-deed was advertised and made, and the land purchased by defendant in pursuance of said agreement. That immediately upon the advertisement of said property for sale, and in pursuance of said agreement, the said May L. T. Taylor took exclusive possession of said real estate, and made valuable improvements thereon, with the knowledge of defendant, expending therefor large sums of money, etc. That the fact that said sale was to be made merely for the purpose of transferring the title of the said Mary L. Taylor to her said daughter, May L. T. Taylor, was made known to the public in various ways by all the parties concerned in said sale; by reason of which, parties who otherwise would have attended the sale remained away. That the land was worth $75,000, and would have brought that amount but for the facts stated. That the plaintiff May L. T. Taylor, relying upon the good faith of defendant, at great sacrifice procured the money required to pay the interest, taxes, and expenses of sale aforesaid, was willing and ready to pay the same, and to execute said deed of trust, but that defendant refused to furnish the amount of interest, taxes, and costs, or to comply with the terms of her said agreement. The answer admitted the execution of the deed of trust, sale, and purchase, the recovery in the action of ejectment, and that defendant is in possession of the premises; denied all the other material allegations in the petition; and set up pleas of the statutes of limitations and frauds, and a plea of res adjudicata. The court, upon the hearing, dismissed the bill, and plaintiffs appeal.

For the purpose of proving the contract set out in the petition, the plaintiff May L. T. Taylor, her husband, Mortimer F. Taylor, and her mother, Mary L. Taylor, were introduced as witnesses, who all testify that they were present, and with defendant were the only persons present, at the defendant's house when and where the alleged contract was made. Their testimony is too voluminous to be set out in full. Mr. Taylor was the spokesman, and acted as the agent and attorney of his wife, who, with her mother, substantially corroborated his testimony as to...