Wendover v. Baker

• Decision Date: 24 March 1894
• Parties: Wendover v. Baker, Appellant
• Court: Missouri Supreme Court

25 S.W. 918

121 Mo. 273

Wendover v. Baker, Appellant

Supreme Court of Missouri, Second Division

March 24, 1894

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Action on three promissory notes, begun April 30, 1890. Notes dated November 1, 1879; one for $ 3,000, due one year; other two for $ 120 each, due six and twelve months. Plaintiff, payee defendant, maker. Answer pleaded, first, that the notes were without consideration; second, certain equitable defenses to the effect that contemporaneously with the execution of the notes, defendant executed a deed of trust to John D. S. Dryden as trustee, to secure them, on a certain lot in Ulrici's addition to the city of St. Louis, at that time and now, with improvements thereon worth $ 5,000; that on the maturity of the first note defendant did not pay it, and by the terms of the deed of trust all of the notes became due at once, and the trustee proceeded to advertise the property for sale, to take place on June 29, 1880; that shortly after the time of the insertion of said advertisement it was orally mutually agreed, between the plaintiff and the defendant, that if defendant would waive all his rights and defenses under said mortgage, and would surrender the immediate possession of said premises to the mortgagee, that the plaintiff would waive all claims and rights as holder of the notes declared on in plaintiff's petition and secured by said deed, and would cancel and surrender the same; that upon the making of said agreement, defendant immediately surrendered possession of said premises to plaintiff; that after such surrender, the property was sold pursuant to advertisement, and plaintiff became the purchaser for $ 900; that, conforming to the agreement, defendant did not try to stop the sale, or thereafter try to reclaim the property or to set aside the sale for inadequacy of price or to assert any other rights in the premises, and in all respects performed the agreement made, but plaintiff did not perform her part of the agreement and surrender the notes, and pretended that if the person then acting as her attorney made any such, it was never known to, or ratified by, her. Also that, in the circumstances mentioned, plaintiff, having remained silent as to the notes for nearly ten years, was estopped from now insisting on their payment, etc.

Further, that plaintiff's then acting agent and attorney, never returned said notes to her possession, but retained them, and during the whole remaining period of her attorney's lifetime, to wit, from the twenty-ninth of June, 1880, until December 10, 1886, when he died, and from that time forward until just before the bringing of this suit, defendant was never approached by plaintiff or anyone representing her, demanding payment of said notes, though during the greater part of that time defendant had been residing in St. Louis, and had property sufficient to satisfy any judgment plaintiff could have obtained, but never inquired for the notes from her said attorney while he lived, nor from her attorney, into whose custody all the papers of her deceased attorney came after his death, and that at the institution of this suit, nearly ten years had elapsed since said sale, and more than three years from the death of plaintiff's said attorney, through whom plaintiff conducted this entire business, "and whose death removes the most important witness of the defendant." The answer concludes with a prayer that the plaintiff be restrained from prosecuting her action at law; to decree the surrender and cancellation of the notes and for other and further relief.

Plaintiff's reply denied all of the material allegations of the answer; denied that any such agreement as alleged in the answer was ever made by any agent of hers, or that any agent of hers had any authority from her to make such agreement, or that she had any knowledge or information of such agreement or ever ratified the same; that soon after the sale she presented the notes to defendant for payment, which defendant failed to make, and she did not sue him, because she learned he had no property, etc., and did not learn of his subsequently acquired property out of which, etc., till shortly before suit brought, etc. She also pleaded that the supposed agreement alleged in the answer, was not evidenced by writing and so was void under the statute of frauds, etc., etc.

Originally a deed of trust had been given on the property by A. B. Converse and wife, the title being in the latter, to secure a note for $ 3,000, due in two years at eight per cent. interest. This was in 1877, the property then having been recently acquired by Converse at a valuation of $ 500, in a trade for another house, made with Wilkerson. Judge Dryden was the trustee in this deed and plaintiff the beneficiary. In October, 1879, when the principal note was about to mature, defendant was induced by Converse, with whom he was on intimate terms -- had indorsed paper for him frequently before -- to accept a transfer of the property, and to give a new note and deed of trust to take up the old note, then held by plaintiff. Defendant agreed to this without inquiry; and, accordingly, a deed was made to defendant for the property by Converse and wife, consideration $ 500, though nothing was paid, and defendant, by representing to Hull & Company, who had been collecting the Converse interest notes for plaintiff, that he had purchased the property, was allowed to carry out the arrangement aforesaid, and accordingly the old notes were taken up and new ones executed by defendant, the same notes in suit, the interest then due was paid, and a new deed of trust was executed to Judge Dryden as trustee. The new notes bore an advanced rate of interest, over the old ones, to wit, ten per cent. interest, and plaintiff was led by defendant's statements and letters to Hull, her agent, and by his promise to pay the debt at the end of one year, not to sell under the Converse deed, and to make the substitution of notes and deeds of trust, as already stated.

At this time, defendant was in possession of the litigated property, and had been thus in possession for some two years, having leased from Converse at $ 500 per year, and he never reconveyed the property but continued to pay rent on it as before, and never, according to his own statement, considered that he owned the property; but this was unknown to plaintiff or her trustee, who supposed him to be the owner. He continued thus to pay rent, though at a reduced rate, $ 35 per month, for some six months, when he removed from the property.

When the first interest note matured in May, 1880, it was not paid. It and the other notes had before that been placed by plaintiff in the custody of the State Savings Institution, where she had a bank account, for collection. Notice of the maturity of the first note was sent defendant by the bank and he notified Mr. Converse. Neither Converse nor Baker, however, paid the note, and she then called on Judge Dryden, her legal adviser, and he advised her to advertise and sell in order to get her money. To this she consented, and he as trustee advertised the property for sale, to occur on June 29, 1880, the advertisements beginning June 7 and ending June 28. Before this advertisement was begun plaintiff delivered to Judge Dryden the three notes sued on, all of which, by the terms of the deed had become due upon the default in the payment of one. At the trial all of them were found to have been indorsed, in blank, by plaintiff, but she could not remember, and the evidence did not show, when they were so indorsed, whether before or after the sale.

In regard to the agreement set up in the answer, defendant testified in his own behalf as follows: That after the publication of the trustee's notice of sale had been begun, having seen it, called upon Judge Dryden at his office in St. Louis, and had a talk with him; that he so called upon him because he was the trustee, and also, as he understood Mrs. Wendover's attorney; that he explained to him how he came to make the notes and deed of trust, and told him, in effect, that the transfer of the property to him by Mrs. Converse was fictitious; that he had not, in fact, bought it; but it had only been transferred to him to hold for her; that he had no expectation, when giving the notes, of paying them, but expected Converse to pay them, and asked him if he would take the property and cancel the indebtedness; that while plaintiff had that deed of trust and on the face of the papers he owed her so much money, he did not want to beat her out of that money; that at the time he could have got forty judgments against him and not collected one of them; that he said to him he was perfectly willing to surrender the property to him without any kind of trouble in the world, and did not want anything to do with it, and asked him to give up his paper; that to this Judge Dryden said he would "see the property and see about it," but did not then consent to give up the notes and take the property; that nothing was said either about his giving Judge Dryden any deed for his interest in the property, or about waiving defenses or rights under the mortgage; that in that conversation what was said was simply this question that he proposed to surrender possession of the property -- not to put him to any trouble in the world, saying to him, "I will give you possession of the property, and you release me on this deed;" that two or three days later, or possibly a week, he saw Judge Dryden again, and that then they talked about the value of the property and the question of additional costs of the property going to sale, and Judge Dryden said the property was...