Young v. Kansas City Life Ins. Co.

• Citation: 43 S.W.2d 1046,329 Mo. 130
• Decision Date: 01 December 1931
• Docket Number: 29726
• Parties: Addie I. Young, Appellant, v. Kansas City Life Insurance Company
• Court: Missouri Supreme Court

43 S.W.2d 1046

329 Mo. 130

Addie I. Young, Appellant, v. Kansas City Life Insurance Company

No. 29726

Supreme Court of Missouri

December 1, 1931

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge.

Affirmed.

A E. Watson and Daniel C. Ketchum for appellant.

(1) Under the allegations of the petition, defendant, is constituted a constructive trustee for the plaintiff. O'Day v. Annex Realty Co., 191 S.W. 41; McLure v. Bank of Commerce, 252 Mo. 510; Brightwell v. McAfee, 249 Mo. 562; Phillips v Jackson, 240 Mo. 310; Hurst Automatic Switch & Signal Co. v. Trust Co., 216 S.W. 954. (2) The petition also sets forth facts which resulted in chilling the bidding at the sale, and the demurrer should have been overruled on that ground. Vetty v. Hackman, 292 Mo. 138, 237 S.W. 802; Vannoy v. Duvall Trust Co., 29 S.W.2d 692; 41 C. J. 949 (note 76); Hoffman v. McCracken, 168 Mo. 337.

Frank W. McAllister, Stanley Bassett and LeRoy Williams for respondents.

(1) The alleged agreement, being an agreement made for the sale of an interest in land, is within the Statute of Frauds and must be in writing. Secs. 2967, 3104, R. S. 1929; Davis v. Holloway, 295 S.W. 108, 317 Mo. 246; Taylor v. Von Schraeder, 107 Mo. 228; Trainman v. Rappaport, 41 F.2d 338; Hillman v. Allen, 145 Mo. 638. (2) A mere breach of an oral contract does not constitute constructive fraud. Ferguson v. Robinson, 258 Mo. 130. (3) Where a trust of the sort attempted to be established by this petition is sought to be enforced there must be allegations of fraud. No such allegations are made in this petition. Hammond v. Cadwallader, 29 Mo. 166; Ferguson v. Robinson, 258 Mo. 131. (4) Under the terms of the alleged contract plaintiff was required to refinance said property before defendant was under obligation to reconvey, and not having performed the contract in that respect appellant is not entitled to recover. Browning v. Railway Co., 188 S.W. 149; International Text Book Co. v. Schwickrath, 179 S.W. 723. (5) There was no chilling of bidding in this case. Vetty v. Hackman, 292 Mo. 138, 237 S.W. 805. (6) No offer to pay the indebtedness is made. Such an offer is essential to recovery. Adams v. Carpenter, 187 Mo. 613; Lipscomb v. Ins. Co., 138 Mo. 24. (7) The property was not bought in for an inadequate consideration and the statement in the petition in reference thereto constitutes no ground for setting aside the sale. Markwell v. Markwell, 157 Mo. 333; Meyer v. Kuechler, 10 Mo.App. 371.

OPINION

White, P. J.

The plaintiff by her guardian, November 10, 1928, filed in the Circuit Court of Jackson County her petition as follows:

"First Amended Petition in Equity.

"Now comes Daniel C. Ketchum and shows to the court that on June 5, 1928, he was duly appointed by the Probate Court of Jackson County, Missouri, at Kansas City, as the guardian and curator of the person and estate of Addie I. Young, a person adjudged to be of unsound mind, and that he is now the duly qualified and acting guardian and curator as aforesaid.

"That on and prior to November 10, 1927, said Addie I. Young was the owner of a parcel of real estate in Kansas City, Jackson County, Missouri, known and described as the south twenty-nine (29) feet of Lot Eight (8) and the north twenty-one (21) feet of Lot Nine (9), Block Two (2) Worcester Park, a subdivision in Kansas City, Missouri, according to the recorded plat thereof; that on said date there was of record a deed of trust covering said property, dated July 20, 1923, recorded in Book B-2380, at page 520, of the records of the Recorder of Deeds of Jackson County, Missouri, at Kansas City, conveying said property to Wood Arnold, trustee for the Kansas City Life Insurance Company, to secure one note for five hundred dollars ($ 500), due July 20, 1925, one note for five hundred dollars ($ 500), due July 20, 1927, and one note for sixty-five hundred dollars ($ 6,500), due July 20, 1928.

"That said defendant on said November 10, 1927, caused a pretended sale to be had, under said deed of trust, by the Sheriff of Jackson County, Missouri, at Kansas City, as substitute trustee, at which sale said defendant received a trustee's deed for said property in consideration of a pretended bid of four thousand dollars ($ 4,000); that for a long time prior to and at the time of the advertisement and sale aforesaid the said Addie I. Young was, and ever since has been, insane, of unsound mind and incapable of attending to her business affairs, and at all times known so to be by the said Kansas City Life Insurance Company; that notwithstanding the said Kansas City Life Insurance Company had knowledge of the insanity of the said Addie I. Young, and disregarding her rights and interests in the premises, caused said pretended sale to be made without actual notice to said Addie I. Young, and without having a guardian appointed for her to represent her interests in the premises. That prior to and during the time said advertisement notice of foreclosure was being published friends interested in the said Addie I. Young were attempting to refinance the property covered by said deed of trust, and would have been successful if there had been anyone with legal authority to act for the said Addie I. Young, all of which facts were well known to the said defendant, Kansas City Life Insurance Company; that the said Kansas City Life Insurance Company having full knowledge of all of said facts represented to said friends of said Addie I. Young, who were interesting themselves in her behalf, that it would go ahead with said foreclosure proceeding and would buy the property in at said trustee's sale, and that then a guardian could be appointed to represent the said Addie I. Young, and that upon said guardian's refinancing said loan it, the said Kansas City Life Insurance Company, would gladly re-convey the property covered by said deed of trust to said guardian for the benefit of the said Addie I. Young.

"That by reason of said statements and representations made by the said Kansas City Life Insurance Company the friends of the said Addie I. Young, who were attempting to protect her interests, ceased active and immediate efforts to prevent said sale taking place, relying upon the Kansas City Life Insurance Company's promises and agreements as aforesaid.

"Plaintiff further states that after he was appointed guardian for said Addie I. Young, as aforesaid, said defendant, Kansas City Life Insurance Company, wholly failed and refused to re-convey said property as it had theretofore promised and agreed, and failed and refused to cooperate with said guardian in re-financing said property, or in any way saving to said Addie I. Young, her equity in said property.

"Plaintiff further states that the advertisement notice of the trustee's sale of the property aforesaid was prepared and published by defendant, Kansas City Life Insurance Company, and said notice stated and represented that default 'had been made in the payment of installment of principal and interest on the note described in a deed of trust executed by Addie I. Young, a single woman, to Wood Arnold, trustee, dated July 20, 1923,' etc.; that said advertisement was false and misleading in that the said original deed of trust secured three principal promissory notes; that none of said notes was payable in installments; that it was impossible to tell from said notice for what debt or obligation said property was being sold, and said advertisement was so inaccurate, uncertain, deceptive and misleading that the same tended to deter and chill bidding at the sale.

"That by reason of the facts aforesaid defendant was enabled to and did at said trustee's sale bid in the property aforesaid at the totally inadequate price of $ 4,000, whereas the said property was actually worth at least $ 12,000.

"That at the time of said sale the said Addie I. Young was occupying said premises as her home, and that she continued to occupy the same thereafter with her household...