Tyler v. LaRimore

• Decision Date: 23 November 1885
• Citation: 19 Mo.App. 445
• Parties: R. H. TYLER ET AL., Appellants, v. ABRAM LARIMORE, Respondent.
• Court: Missouri Court of Appeals

19 Mo.App. 445

R. H. TYLER ET AL., Appellants,

v.ABRAM LARIMORE, Respondent.

Kansas City Court of Appeals, Missouri.

Nov. 23, 1885.

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

Motion for re-hearing overruled.

Statement of case by the court.

This action is founded on the following contract:

“This agreement, made and entered into this six-teenth day of November, 1880, by and between Abram Larimore, of the county of Audrain, and Jane Larimore, of the county of Callaway, Missouri, heirs and widow of Henry Larimore, deceased, parties of the first part, and R. H. Tyler, of Callaway county, and J. R. Baker, of Audrain county, Missouri, parties of the second part, witnesseth, that, whereas, the following land belonging to the estate and heirs of said Henry Larimore, deceased, to-wit: The southeast quarter of section thirteen, the east half of the northwest quarter of section twenty-four, and the east half of the southwest quarter of section thirteen, all in township forty-seven, range ten, west; also, the northeast quarter and southeast quarter of section twenty-four, township forty-seven, range ten, west; and, also, the northwest quarter of section nineteen, and southwest quarter of section eighteen, township forty-seven, range nine, west, containing in all 1020 acres, all situated in the county of Callaway, Missouri, to be sold on the first day of December, 1880, at public vendue, to the highest bidder, at Fulton, Missouri, under several deeds of trust, which are valid and subsisting liens on said land. Now, therefore, the parties of the first part, in consideration of the promises and covenants hereinafter made by the parties of the second part, have released and relinquished, and do hereby release and relinquish all their rights, titles, claims and interests in and to any and to all of said lands, except as herein provided, and relinquish all their right and interest in and to all or any part of the money which may arise from said sale of land under the trust deeds of December 1, 1880, as heirs and widow of the said Henry Larimore, deceased, to the parties of the second part, except that should the debts allowed against the estate of the said Henry Larimore, deceased, and mortgaged debts hereinafter mentioned, amount to less than $18,000, the sum specified to be paid for said land at said sale, by said parties of the second part, as hereinafter mentioned, then said parties of the first part as heirs and widow, are to have their proportion of the said $18,000 that exceeds the said debts of said estate.

And in consideration of said covenants, and relinquishment by the parties of the first part, the parties of the second part hereby promise, undertake, and agree by bidding on said land, at said sale, to make said land bring $18,000, or, should the mortgaged debts, and the debts allowed against said estate exceed $18,000, then said parties of the second part agree to make said land, at said sale, pay said debts, except as to the Duncan claim, which has been allowed against said estate.

It is mutually understood, and agreed, that said parties of the second part are to make said land, at said sale, bring $18,000, and if the mortgaged debts and the claims allowed against said estate should be less than $18,000, then the parties of the second part shall pay into the hands of the administratrix the difference between said debts and $18,000; but if on the other hand the land should bring more than $18,000, then the difference between $18,000 and the amount which the land shall bring, or if the said debts (excepting the Duncan debt), shall exceed $18,000, then the difference between the amount of said debts and the amount which said land shall bring at said sale, shall not be paid to the administratrix, but shall belong to said parties of the second part, and shall be paid to them. It is mutually understood that none of the purchase money, as aforesaid, to be paid for said land at said sale, shall be appropriated to the payment of any claims except the mortgaged debts aforesaid, and the debts now allowed against the estate of the said Henry Larimore.

Witness our hands and seals, this sixteenth day of November, 1880.

ABRAM LARIMORE, [SEAL.]

JANE LARIMORE, [SEAL.]

R. H. TYLER, [SEAL.]

J. R. BAKER, [SEAL.]”

The petition was filed by Tyler and Baker, the parties of the second part, against Abram Larimore, one of the parties of the first part. After stating the substance of the contract, the petition avers that the land was sold at said sale, and brought about $24,000, which was paid by plaintiffs to Jane Larimore, who was the widow and administratrix. That after said incumbrances and debts were paid, there remained a surplus, subject to the provisions of said contract, of about $6,000, to be distributed among the heirs; that under said contract the plaintiffs were entitled to said sum, but the administratrix had paid over the same to the heirs, the defendant receiving thereof the sum of $1,500, for which judgment is asked.

The substance of the answer is a general denial.

Among the more important facts which the plaintiff's evidence tended to show at the trial, had before the court without the intervention of a jury, are the following:

“That at the time this contract was entered into, Henry Larimore had been dead; letters of administration had been granted his widow, Jane Larimore, and notice of such letters had been published for more than one year.

That said deceased died intestate, leaving his said widow and four children, viz.: defendant, Abe Larimore, the wives of each of the plaintiffs, and one other daughter, the wife of Miller, and that the said widow had, previous to said contract, elected to take a child's part in the estate of deceased in lieu of dower therein.

That said deceased died seized of the real estate described in said contract, and about two hundred and forty acres of land situate in Audrain and Callaway counties, in addition thereto; said lands in said contract described being subject to certain deeds of trust to secure notes executed by deceased in his lifetime, amounting to about $9,000.

That there had also been allowed against the estate of said deceased, debts amounting to about $9,334.82, in addition to said secured notes.

That at the date of said contract there was a deed of trust on defendant's land to secure a note of $2,000 made by deceased in his lifetime, which had been allowed against his estate.

At said date it was considered by the heirs doubtful whether the estate of said deceased would be sufficient to pay the debts owing by the estate.

That at the date of the contract the land therein described was advertised to be sold under certain of said deeds of trust, on the first day of December thereafter, and the heirs of deceased were fearful that said land would be sacrificed at said sale. That at this time land in Callaway county was low in value, and but few sales made, though then increasing in value.

That at said trustees' sale plaintiffs requested that all the land be sold, but the trustees refused to do so, but only sold enough to pay the debts secured by said deeds of trust.

That at said trustees' sale plaintiffs bought all the said land offered for sale by the trustees, and paid therefor the full value, viz.: the sum of $11,012.

That plaintiffs had arranged for the money to the amount of $18,000, to purchase said land, which they had to borrow.

That the whole of said land was not sold by said trustees, at said sale, only four hundred and seventy acres being sold.

That afterwards, on the seventh day of November, 1881, the balance of the land described in said contract was sold by the administrator under an order of the probate court of Callaway county, to pay the debts of said estate, at which sale plaintiffs purchased the balance of said land, except forty acres, and paid therefor the sum of $13,455, which was paid to said administrator.

That after the debts had been so paid a surplus arising from said two sales, remained in the hands of the administrator, one-fifth of which said administrator paid to defendant.

That afterwards said forty acres of land was sold at a sale for partition among the heirs, and plaintiffs bought the same.

That at the time of the administratrix sale of the balance of the land described in the contract, the land sold at said sale was more valuable than at the date of the trustees' sale.”

The defendant offered evidence tending to prove the following facts:

“That at the date of the contract the estate of H. Larimore, deceased, was considered by the heirs sufficient to pay all the debts owing by it.

That at the trustees' sale, on the first day of December, defendant notified plaintiff, Tyler, that he did not consider that plaintiffs had come up to their contract, and he would treat it at an end. This was on the day of sale, and just after it had been made.

That at said trustee's sale said land brought no more than its market value.

That the estate of H. Larimore, deceased, at the time of his death, and when the contract sued on was made, was supposed by the parties to said contract to be largely indebted to parties known as the Curtis heirs, living in Virginia, to-wit: in the sum of about $30,000.

That the contract sued on by plaintiffs was entered into for the purpose of defeating said Curtis heirs in the collection of their claim and in fraud of creditors.

That the balance of the land described in the contract, sold at the administratrix's sale, brought less than its real value.”

The court found the issues for defendant, and plaintiffs have brought the case here by appeal.

MACFARLANE and TRIMBLE, with whom is I. W. BOULWARE, for the appellants.

I. It may be admitted that before a recovery can be had at law on a special contract, a strict performance of all material matters on the part of the plaintiff must be shown. But in this case the time was not material. The rule that at law, time will always be regarded as of the essence of...