Williams v. Verity
| Decision Date | 06 April 1903 |
| Citation | 73 S.W. 732,98 Mo.App. 654 |
| Parties | ELIZABETH WILLIAMS, Respondent, v. WILLIAM H. VERITY, Assignee, etc., et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. Gallatin Craig, Judge.
AFFIRMED.
Judgment affirmed.
A. F Harvey and J. S. Shinabargar for appellant.
(1) The trial court erred in applying the doctrine of estoppel to the facts in this case. A building and loan association can not arbitrarily fix any period when its shares shall mature, and a borrowing stockholder is entitled to have his deed of trust given to secure the payment of his monthly dues released only when his monthly dues paid and the earnings thereon bring his stock to par. Any contract, agreement, letter or statement to the contrary is beyond the powers of the association and not only an act in excess of its powers but an act that is ultra vires and void--an absolute nullity. Caston v Stafford, 92 Mo.App. 182; Butche v. Loan Ins Ass'n, 147 Mo. 343; Schell v. Inv. Ass'n, 150 Mo. 103. (2) There was no evidence upon which the trial court could predicate its finding of estoppel. It is not shown nor even pretended that Herbert Harris, or any other officer of the association, knew that this property was being bought by John F. Williams, or any other person, or that the statement made in the letter was to be used by Rowley & Owen as a negotiable statement of indebtedness and passed from hand to hand promiscuously. An act to operate as an estoppel must have been done with the intent that the other party should act upon it. Sav. Co. v. Horn, 83 Mo.App. 114; 2 Herman on Estoppel, sec. 778, p. 902. (3) The court erred in its finding "that there is no competent evidence that any of the money paid defendant's assignor was paid on stock." Payment of monthly dues on stock does not constitute payment on loan. Caston v. Stafford, 92 Mo.App. 182; Brown v. Archer, 62 Mo.App. 277.
E. A. Vinsonhaler for respondent.
(1) The rule is not, as appellant contends, that estoppel can not be predicated upon an act ultra vires. 2 Herman on Estoppel, page 1314, section 1179; Bertsche v. Ass'n, 147 Mo. 360; Smith v. Richardson, 77 Mo.App. 422. (2) Appellants' secretary, when he wrote the letter of May 13, 1896, to Rowley & Owen, was bound to state the facts; and to permit them to deny the truth thereof would work a fraud upon respondent. "An active intent to mislead is not essential to an equitable estoppel." Nor is it necessary that Mr. Harris should have known the object of the inquiry. The Ottumwa Belle, 78 F. 643; Guffey v. O'Reilly, 88 Mo. 418; 2 Herman on Estoppel, page 1037.
--In 1891 the Missouri Guarantee Savings and Building Association of Hannibal, a building and loan company, which, for the sake of brevity, we shall hereinafter refer to as the building association, advanced to one Yeaman, a holder of twelve shares of its stock of the par value of $ 1,200, the sum of $ 1,200, and the latter executed to the former a deed of trust on lots 1 and 2 in the city of Maryville, and also on his said stock, to secure the payment of the monthly dues, interest and premiums, etc., and which said deed was properly recorded. Some time afterwards, Yeaman sold lot 1, and under an agreement with all the parties the building association divided the loan so that each of said lots became subject to the lien of the deed of trust for only $ 600. Afterwards, in 1896, the title to lot 2 had been conveyed to one Coulter, who offered to sell the same to John F. Williams, plaintiff's son, for a certain sum, subject to existing incumbrances. Williams was unwilling to close the negotiations with Coulter for the purchase without first ascertaining the exact amount claimed by the building association under its deed of trust, and thereupon he requested Rowley & Owen, who were local collecting agents of the building association, as well as real estate agents, to inquire of said building association the exact amount it would require to secure a release of its deed of trust; and accordingly they wrote to said building association and received an answer to the effect: Rowley & Owen were fully apprised of the negotiations between Coulter and Williams and the purpose the latter had in seeking the information requested. On receipt of the information thus sought, Williams closed the negotiations with Coulter and accepted a deed conveying the land, subject to the deed of trust lien. Shortly thereafter, he by deed conveyed said lot to the plaintiff subject to the said deed of trust. It appears that said Williams in making the purchase was acting for the plaintiff who desired to acquire the lot. After the purchase, plaintiff made the forty-six $ 9 payments which were received by the building association.
On December 8, 1900, the building association became insolvent and made a general assignment of its assets to defendant Verity, who claimed that the said deed of trust had not been satisfied in full by the several payments made by the plaintiff and that there was upwards of one hundred dollars still due said building association, and the plaintiff refusing to pay the same after demand, he directed the trustee in said deed of trust, the sheriff, who is the other defendant, to advertise and sell said lot 2 according to the terms of that instrument, and who accordingly proceeded to comply with said direction; and thereupon the plaintiff brought this suit to enjoin the trustee from proceeding with the sale, for a cancellation of the deed of trust, etc.
In the petition it is alleged, amongst other things, that before making the purchase of said lot, plaintiff caused inquiry to be made as to the amount of the debt secured by the deed of trust, and that the building association, through its secretary, knowing the object of such inquiry, informed her that there was due at that time forty-six monthly payments of $ 9 each, and that she paid the full sum of all the payments so claimed by the said building association under the deed of trust, and that the said assignee was estopped to claim anything further on that account.
The trial court found (1) that the debt described in plaintiff's petition was paid in full and the defendant, the assignee, was estopped to claim more was due than was claimed by his assignor--the building association--at the time the plaintiff purchased the lot; and (2) that there was no competent evidence that any of the money paid defendant's assignor was paid on stock, and accordingly entered a decree for plaintiff, and from which defendants appealed.
It is contended by the assignee that a building and loan association can not arbitrarily fix any period when its shares shall mature, and that a borrowing stockholder is not entitled to have a deed of trust, given by him to secure the payment of his monthly dues, released until such dues are paid and the earnings thereon bring his stock to par; and that therefore the action of defendant in fixing the number and amount of the monthly dues to be paid on the Coulter stock by the plaintiff to bring such stock to par and to entitle her to a release of the deed of trust as to lot 2, as stated by its...
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