Thias v. Siener

• Citation: 15 S.W. 772,103 Mo. 314
• Parties: THIAS v. SIENER.
• Decision Date: 09 March 1891
• Court: United States State Supreme Court of Missouri

15 S.W. 772

103 Mo. 314

THIAS v. SIENER.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

EQUITY — JURISDICTION.

A bill in equity alleged that while special relations of trust existed between plaintiff and defendant, whose son C. had married plaintiff's daughter, defendant was engaged in an exchange of land in which there was a large sum to be paid by defendant; that defendant authorized C. to apply to plaintiff for a loan of the money, for which defendant would give her note, secured on the land; that plaintiff advanced the money and received from C. a note therefor, but, not being able to read the English language, and believing the representations made to her, she did not know that the note was made by C., payable at a certain bank, to the order of defendant, and indorsed by her to plaintiff, and that the note should have been presented at such bank when due; that defendant never gave the deed of trust, saying that the expense would be great, but that, as long as she kept the property plaintiff would be secure; that after the death of C., plaintiff's attorney told her that it could not be enforced against defendant, by reason of plaintiff's failure to have it protested, and that plaintiff then for the first time learned that defendant was not the maker of the note; that defendant admitted that she owed the money, but refused to pay it until compelled to; that afterwards plaintiff recovered 25 per cent. of the note against C.'s estate. Plaintiff prayed judgment against defendant for the balance due, and that the same be secured by deed of trust on the land. Held, that the bill stated facts showing only an ordinary action of debt, and plaintiff was not entitled to relief in equity until her remedy at law was exhausted.

Appeal from St. Louis circuit court.

This proceeding was instituted the 21st of January 1888. The amended petition is as follows:

"The plaintiff would respectfully state to this honorable court that she is, and during all the time of the facts and transactions hereinafter stated has been, a resident of the said city of St. Louis, state of Missouri, and she is, and at all the time and times hereinafter stated and set out was, a widow, and that the said defendant is, and has been during all the time of the facts and transactions hereinafter stated and set out, a resident of the said city aforesaid, and during all the time, and prior thereto, of the facts and transactions hereinafter stated and set out, and now is, a widow, and that the relationship existing between the said plaintiff and the said defendant was and is that the daughter of the plaintiff was married to Charles P. Siener, the son of the defendant, and that said relationship between the said plaintiff and the said defendant existed from the year A. D. 1870. The plaintiff would further state to this honorable court that by reason of the said relationship aforesaid an intimacy and affection and mutual trust and confidence was engendered and created between the families of the said plaintiff and the said defendant, and especially between the said plaintiff and the said defendant, who was an especially earnest and devout Christian woman, and attended with usual and singular promptness and regularity the services of the church of which she was a member; and by reason of the relationship aforesaid, the high Christian character of the said defendant, the social relations and associations, the friendship, affection, and confidence between the families of the said plaintiff and of the said defendant created the utmost and greatest trust and confidence on the part of plaintiff in the honesty, integrity, and trust of the said defendant, Josephine Siener, which was well known by the said defendant at the time of the facts and transactions hereinafter stated. Therefore the said plaintiff complains to this honorable court, and for complaint against the said defendant, Josephine Siener, states that on or about the 1st day of September, A. D. 1875, during the relations between plaintiff and defendant as aforesaid, the said defendant was engaged in a real-estate transaction, wherein she was exchanging certain real estate owned by her in Jefferson county, state of Missouri, for certain real estate fronting 38 feet on the south line of Palm street, and having a depth southwardly of 80 feet, in city block 336 of the said city of St. Louis, and that there was a large difference between the values of said properties which the said defendant had to pay in cash to accomplish the exchange of said properties and secure the said real estate in the said city of St. Louis, aforesaid. That by reason of the family relations aforesaid, and the confidence that existed between the families of plaintiff and defendant and between the plaintiff and defendant, it was well known to and by said defendant and her said son, Charles P. Siener, husband of the daughter of plaintiff, as aforesaid, that at and during this time, to-wit, September, A. D. 1875, the plaintiff had in her personal possession a large sum of money in cash, to-wit, the sum of nineteen hundred dollars, and that, the said defendant desiring to make the exchange of said real estate and secure the said real estate in the city of St. Louis, and not having the cash money to pay the difference necessary to accomplish said exchange, thereupon the said defendant authorized and empowered her said son, Charles P. Siener, also son-in-law of the plaintiff, to go to the plaintiff, and apply to her to loan said defendant the said sum of $1,900.00, for which the said defendant would execute and deliver to plaintiff her certain promissory note, and that the said defendant, being thus enabled to perfect and accomplish said exchange of properties, and acquire a clear title to said real estate in the said city of St. Louis, would thereupon make, execute, and deliver to plaintiff a deed of trust upon said real estate in said city of St. Louis to secure the payment of said sum of $1,900.00, and the interest thereon, and that thereupon the plaintiff agreed to make said loan of $1,900.00 to said defendant; and that subsequently, to-wit, on the 6th day of September, A. D. 1875, said loan was consummated, and the said plaintiff delivered and paid over to the said defendant, through her said son, Charles P. Siener, the sum of $1,900.00 in cash, and received from the said defendant, through and by said Charles P. Siener, a promissory note, which was represented to plaintiff as the note of the said defendant and the said Charles P. Siener, which said note is filed herewith, and made a part hereof. That thereupon, to-wit, on the 14th day of September, A. D. 1875, the said defendant consummated said exchange of aforesaid real estate in the said city of St. Louis in her own name and for her sole use, benefit, and enjoyment, and that she, the said defendant, has owned said real estate in said city of St. Louis in her own name from said 14th day of September, 1875, to the...