Thompson v. Lindsay

• Decision Date: 29 February 1912
• Parties: THOMPSON v. LINDSAY et al.
• Court: Missouri Supreme Court

145 S.W. 472

THOMPSON v. LINDSAY et al.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

Motion for Rehearing Overruled March 29, 1912.

1. APPEAL AND ERROR (§ 878) — REVIEW — PARTIES WHO MAY ALLEGE ERROR.

A contention by appellee cannot be considered where he did not appeal from the decree which decided it against him.

2. PLEADING (§ 34) — CONSTRUCTION — DEMURRER —OBJECTION TO EVIDENCE.

On objection to the introduction of any evidence to support the bill, the bill is entitled to every reasonable intendment in its favor.

3. CONTRACTS (§ 152)—CONSTRUCTION—CONSTRUING AS WHOLE.

In construing a contract, the whole contract, including the subject-matter, parties, the object of the contract, and its language, should be considered.

4. VENDOR AND PURCHASER (§ 70) — CONSTRUCTION OF CONTRACT—PRICE.

A contract for the sale of land provided that the purchaser should pay a certain special tax bill which was outstanding, and provided in effect that, if the seller paid any taxes or liens, the amount paid should be reimbursed to him by the purchasers by distributing it through the monthly installments which remained to be paid on the price. Held that, while the vendor could pay the special tax bill when necessary to preserve the land, and add the amount actually paid to the purchase price where the amount paid was by way of compromise, making it several hundred dollars less than the face of the tax bill, the purchaser

could not be charged with the face of the tax bill.

5. MORTGAGES (§ 372) —VALIDITY—EFFECT ON RIGHTS OF PURCHASER ON FORECLOSURE.

A contract for the sale of land in effect required the purchaser to pay the amount of a special tax bill outstanding against the property, or to pay the vendor the amount required to discharge the bill. The vendor discharged the tax bill at a discount of several hundred dollars from its face, but required the purchaser to pay the full amount by including it in the note secured by a trust deed which the contract authorized the vendor to execute on the property for the remainder of the price. Held, that the excess illegally included in the trust deed vitiated the entire trust deed, and hence a purchaser with notice thereof at a sale under the trust deed would take subject to the original purchaser's right to redeem.

6. PRINCIPAL AND AGENT (§ 177)—NOTICE TO AGENT—EFFECT.

Notice to the agent of a mortgagee is notice to the mortgagee of any facts affecting the validity of the mortgage.

7. ESTOPPEL (§ 110)—PLEADING—NECESSITY.

An estoppel must be pleaded in order to be available.

8. ESTOPPEL (§ 58)—ELEMENTS.

As a rule, the facts relied on as an equitable estoppel must have caused the party asserting it to have changed his position in reliance thereon to his injury.

9. ESTOPPEL (§ 118) — EVIDENCE — SUFFICIENCY.

Evidence held to show that the purchaser of land under an installment contract, which permitted the vendor to mortgage the land for the balance due on the contract and thereupon deed the land to the purchaser, did nothing to induce the mortgagee to accept a mortgage for an excessive amount so as to estop him from contesting its validity on that ground.

10. EQUITY (§ 64)—MAXIMS.

Equity will not aid one to obtain relief from a position in which he was placed by his own negligence.

11. MORTGAGES (§ 597)—REDEMPTION—DEFENSES—NEGLIGENCE.

Where the vendor without any negligence by the purchaser wrongfully charged a certain sum to the amount remaining due on the purchase price and included such sum in a trust deed executed pursuant to the contract of sale, the fact that the purchaser, after the execution of the trust deed securing such illegal amount, negligently conducted his business so as to prevent him from ascertaining that fact for a year would not prevent him from redeeming the property after foreclosure by paying only the amount on the purchase price which should have been included in the trust deed.

12. ACCOUNT STATED (§ 18) — PLEADING — NECESSITY.

Defendant should plead an account stated in order to invoke the principles applicable thereto as a defense.

13. ACCOUNT STATED (§ 19) — EVIDENCE — SUFFICIENCY.

Evidence in a suit by a purchaser from a mortgagor to set aside the trust deed after foreclosure and to compel a conveyance of the property to him, on the ground that certain items were illegally included in the note secured by the trust deed, held not to show that the vendor was induced by the purchaser's silence to believe that vendee had agreed to the statement of account between them as it was included in the trust deed.

14. JUDGMENT (§ 736)—RES JUDICATA—MATTERS NOT IN ISSUE.

An installment contract for the sale of land permitted the vendor to mortgage the land for the balance due and close the contract by deed to the purchaser. The vendor mortgaged for an excessive amount, and the mortgagee who had notice foreclosed and bought in and recovered possession in ejectment against the purchaser's tenant. Held that, no equitable defense having been set up in the ejectment suit, the judgment therein was not res judicata in a subsequent suit by the purchaser to set aside the mortgage and foreclosure on the ground of the excessive amount for which it was given.

15. EQUITY (§ 427)—RELIEF AWARDED UNDER PRAYER.

Under a prayer for general relief, all the relief may be awarded which is within the fair intendment of the bill.

16. MORTGAGES (§ 602) — REDEMPTION—RELIEF GRANTED.

In a suit by a vendee to set aside a trust deed and trustee's deed at foreclosure and to compel a reconveyance to plaintiff on the ground that the trust deed was void because certain items were illegally included in the note for the price secured thereby, in order to avoid multiciplicity of suits, plaintiff may be awarded rents for the time the purchaser was in possession, as well as possession of the land.

17. MORTGAGES (§ 620)—SUIT TO REDEEM—RELIEF TO DEFENDANT.

In a suit by a purchaser of land to set aside a trust deed fraudulently executed thereon by the vendor on March 19, 1907, as well as a trustee's deed made at foreclosure, and to redeem, the vendor should be awarded interest on the amounts due under the contract from March 19, 1907, to the rendition of the decree; rents having been awarded to the vendee by the decree giving him possession.

Appeal from Circuit Court, Buchanan County; H. M. Ramey, Judge.

Action by Porter A. Thompson against E. M. Lindsay and another. From a decree for plaintiff, defendants appeal. Reversed in part and remanded, with directions.

K. B. Randolph, for appellants. Culver & Phillip, for respondent.

LAMM, J.

Equity. On March 18, 1908, plaintiff sued in the Buchanan circuit court to set aside a deed of trust and trustee's deed purporting to convey to defendant Hettie Lindsay lot 1 in block 3, South St. Joseph Town Company's Second addition to the city of St. Joseph, and for an accounting. The prayer of the bill was further that defendants be compelled to convey—in default of such conveyance title to be vested out of them and into plaintiff.

From a decree finding the issues for plaintiff and granting relief in kind with an accounting of the amount due on the contract and for rents (defendant Hettie being then in possession) and a writ of restitution, defendants come up by appeal.

Questions raised seek a summary of the pleadings and facts, to wit: In brief, the bill alleges that in August, 1904, E. M. Lindsay contracted in writing with named purchasers —Waller and Arthur—in consideration of $1,945 (to be paid in a cash payment of $150 and thereafter in monthly installments of $25 with interest at 6 per cent. from date of contract on each installment), to sell said purchasers said lot and convey same by warranty deed in fee simple when the purchase price was fully paid. The purchasers were to have possession and pay state and county taxes for 1904, and a special tax bill for grading and paving Cherokee street. (The terms of this contract will appear more fully hereinafter.) The bill then pleads a further provision in said contract giving Lindsay the option and right, at any time before said warranty deed was executed, to put a deed of trust on the lot for the amount unpaid on said contract at that date, with usual commissions and expenses—this to be by way of a loan from any person willing to loan such amount on the premises. In that event Lindsay was to receive the proceeds of such loan, and thereupon execute to said purchasers a warranty deed with a provision therein that grantees assume the payment of such loan. There follow allegations to the effect that the contract permitted its own assignment, and that by several intermediate assignments it came finally to plaintiff who now holds all rights thereunder; that the cash payment was made together with all monthly installments with interest in accordance with the contract terms; that after plaintiff became the owner of the contract it was agreed between him and E. M. Lindsay that the monthly payments were to be made at plaintiff's office; that on the 19th of March, 1907 (and on the 21st of said month), there remained due on the contract (exclusive of the Cherokee special tax bill) $1,207, principal and interest.

Referring to the Cherokee special tax, the bill alleges that it was outstanding, but the special tax bill was void and created no lien against the lot; that on its face it called for $268.16; that on May 11, 1906, the interest accrued on said pretended tax bill was $131.91; that, without the consent of plaintiff, E. M. Lindsay on said last-mentioned date paid to the holder of said void tax bill, by way of compromise and settlement, 60 per cent. thereof; that although the bill was void and the compromise unauthorized yet on the 19th of March, 1907, plaintiff was ready and willing to pay, not only the amount remaining due on the purchase contract, but the amount paid by way of compromise on the void tax bill together with interest.

Plaintiff then goes on to set forth in his b...