198 Mo. 471 | Mo. | 1906
This is an appeal from the circuit court of New Madrid county, Missouri, dissolving the temporary injunction which had been previously granted by said court restraining and enjoining the defendant Stone from selling certain real estate in said county, under and by virtue of a certain deed of trust made and executed on the 10th of November, 1899, by J. H. Stanley and Albert Maynard as co-partners in the saw-milling and timber business at Conran, Missouri.
The petition for the injunction in substance stated the following facts: That on the 10th of November, 1899, J. H. Stanley and Albert Maynard were the joint owners in fee simple of 354.66 acres of land specifically described, all situated in New Madrid county, Missouri. That on the 10th day of November, 1899, said Stanley and wife and said Maynard and wife made, executed and delivered their certain deed of trust to the above-described lands to John H. Himmelberger, as trustee, to secure $1,241.31 to the HimmelbergerLuce Land & Lumber Company, as evidenced by their notes for that amount; that the said notes secured by the said deed of trust were past due and wholly unpaid and were the property of the plaintiff Barnes. It is then alleged that on the......day of March, 1903, the defendant at the request of the plaintiff proceeded to sell the above-described lands at public sale to satisfy said debt; that at the said sale, the said land was sold, and plaintiff was the highest bidder therefor at the sum of $3,010. It is then alleged that on the 23rd of February, 1901, the said Maynard and wife and Mrs.
Four notes secured by the first above-described deed of trust dated November 10th, 1899, amounting to........ $1,607.72
The unpaid note secured by the second above-described deed of trust dated - February 23rd, 1901, amounting to.. 690.11
The three tax receipts above described amounting to.................... 322.64
Money of the U. S. for publishing notice of sale per bill.................... 6.00
Lawful money for trustee’s fees of defendant as agreed.............. 40.00
Cash............................. 583.53
Making a total of............... $3,010.00
And that the defendant refused to accept in satisfaction of said bid and refused to make and deliver to plaintiff his trustee deed to said lands. It was then alleged that the defendant had re-advertised said real estate for sale under the first above-described deed of trust, although not requested so to do by plaintiff, the holder of the note secured thereby; that if such sale is permitted, it will cast a cloud on the title of plaintiff to said lands, and that the defendant unless restrained
The temporary writ of injunction was granted, and at the March term, 1903, the defendant filed his an-sewer to the petition, in which he admitted the conveyance of the lands by Stanley and Maynard to Himmelberger to secure the $1,241.31. Admits that at the request of the plaintiff on the 4th of March, 1903, defendant advertised and proceeded to sell the lands in said deed of trust described, in all respects as required by law, and did sell the same to plaintiff for the sum of $3,010. Defendant states that previous to the acquiring by plaintiff of the various notes described in plaintiff’s petition, J. II. Stanley had departed this life; that the second deed of trust secured in favor of L. F. La-Font, was executed after the death of said Stanley. It is then alleged that on the 28th of February, 1901, L. F. LaFont was duly appointed administrator of the partnership estate of Stanley and Maynard, and qualified as such, and that the said estate was still pending and unsettled in the probate court of New Madrid county at the time of the institution of this suit for injunction. Defendant states that when the plaintiff bid off the said lands at the sale thereof by defendant, under the deed of trust to said Himmelberger, the plaintiff promised the defendant to pay the said sum of $3,010, the amount of his bid for said lands, as soon as he came to town, and defendant did not at once re
Afterwards, on the same day, the defendant filed his motion to dissolve the injunction. Both parties having consented to the trial of said cause at the March term, 1903, it was submitted to the court and after hearing all the testimony, the court dissolved the injunction and dismissed the bill.
I. Has this court jurisdiction of this appeal? It is evident that the amount involved does not give this court jurisdiction, and there is no Federal question in the case. Indeed it is obvious that unless it can be said that the title to real estate is involved, this court has no jurisdiction of the case.
The bill has two objects in view, one to obtain an injunction to prevent a sale of lands, on the ground that it will cast a cloud on the title of the plaintiff, and the other to compel defendant to accept certain notes in payment of a bid made by plaintiff for said lands at a sale by defendant as trustee, and make plaintiff a deed. The pleadings on both sides assert and confess title in the lands to be in the partnership of Stanley & Maynard, and that the debt for which the Himmelberger
If the only purpose of the bill was to obtain an injunction, we should hold that the title to real estate was not involved. [State ex rel. v. Court of Appeals, 67 Mo. 199.] But the bill also prays for a specific performance of the contract of sale and this presents a different phase of the case. The necessary result of the suit must be that one party will win or lose the title to the real estate involved. If this court should hold that plaintiff was entitled to pay for the land in the way he offered to do, a decree must be entered directing defendant to execute and deliver him a proper conveyance thereto. On the other hand, if we should hold that the plaintiff’s tender was insufficient, then he is not entitled to a deed or the land in equity, and he loses it. In this latter view of the case we think the title to real estate is involved in the meaning of our Constitution defining the jurisdiction of this court.
The jurisdiction of the Supreme Court of Illinois on appeal attaches when the title to a freehold is involved and that court has often ruled that in suits to enforce the specific performance of contracts for the conveyance of freehold estates the title is involved, upon the principle that where the necessary result of the judgment or the decree is that one party gains and the other loses a freehold estate, the title is involved. [Banking Ass’n v. Bank, 157 Ill. 576; Ryan v. Sanford, 133 Ill. 291; Railroad v. Watson, 105 Ill. 217.]
II. On the merits of the case we find no error. The plaintiff, as the owner of the Himmelberger deed of trust, had the right to have it foreclosed, and it is conceded by both sides that he requested the defendant as substituted trustee in place of Himmelberger, the trustee, who had refused to act, to advertise and sell the lands and thus foreclose the deed of trust, and the defendant at his request did sell the lands in suit to
Counsel invokes the law that a surviving partner may administer the partnership estate in right of his survivorship and this is ordinarily true, but there is not a word of evidence in this record that Maynard undertook as surviving partner to administer on the partnership estate of Maynard & Stanley, and there is no such allegation in the petition. There is neither allegation nor proof that the note and deed of trust given by Maynard and wife and Mrs. Stanley was for a co-partnership debt.
Whatever may be the rights of a surviving partner, it is clear that when, as in this case, he waives his right to administer on the partnership estate, and another administrator is in charge when the lands of the co-partnership are sold to satisfy a lien created when all the partners are alive, the surplus over and above the secured debt is assets of the copartnership estate, and the administrator thereof is entitled to administer the same and apply it to the liquidation of the unpaid debts of the partnership. [Carlisle’s Adm’r v. Mulhern, 19 Mo. 56.]
It appears to us that the discussion of Maynard’s powers as surviving partner under the facts disclosed upon this record, is dehors the record. As the surplus over and above the Himmelberger note and interest belonged to the administrator of the partnership- estate, LaFo-nt, the defendant as trustee was right in
We do not think the plaintiff is in a position to say that such a resale would be without his consent or request, after inducing the trustee to act, but be that as it may, the burden of this appeal is the right of plaintiff to require defendant to accept the note of Maynard and wife and Mrs. Stanley, executed after the death of Stanley as part payment of his bid, and we are of the opinion that neither his bill nor the proofs required the defendant to accept the same, and the circuit court properly so held. There was no error in dismissing the injunction on the other facts developed.