149 Mo. 345 | Mo. | 1899
This is a suit in equity to set aside a deed releasing a deed of trust, on the ground, as alleged, that the deed of release was obtained by fraud.
The petition states, substantially, that in 1886, the plaintiffs were minors and that defendant was by the probate court of DeKalb county duly appointed and qualified as their guardian and curator; that as such curator he received large sums of money and property belonging to plaintiffs; that plaintiffs attained their majority in September, 1890, and 1891, respectively, and upon coming of age demanded of defendant the amount shown to be due them on his final settlement in the probate court, but he neglected to pay them, and on October 12, 1891, he was indebted to them on this account in the sum of $2,121.75; that to secure this amount he executed three negotiable promissory notes of that date, one for $900, one for $921.75, both due in five years, with eight per cent interest from date, and one for
Defendant by his answer denies the charges of false representations, admits that he was appointed curator, but denies that he ever received any money or property of plaintiffs; he avers that one Austin Craig had been their curator, and becoming financially involved, induced defendant to take the office and assume the liability, which he did, but found himself unable to pay it; plaintiffs instituted suit and recovered judgment against him, and being unable to pay the judgment, at the request of plaintiffs’ attorney he executed the notes and deed of trust mentioned, with the understanding that they were in full satisfaction of the judgment; that afterwards, in 1894, plaintiffs having written to defendant demanding payment, and he being insolvent and unable to pay the debt, arranged to borrow $1,000, which was all he
After due trial there was a final decree for the plaintiffs at the October term, 1896, of the DeKalb Circuit Court, setting aside the deed of release, declaring the deed of trust in full force for $1,489.85, the balance due on the notes after giving credit for the $1,000 paid for the release, directing a foreclosure of the deed of trust, application of the proceeds to payment of the amount so found due, and general execution against defendant for what might be left unpaid.
Motions for new trial and in arrest followed, and the cause is here on appeal.
I. There are several questions of law discussed in the interesting briefs with which the counsel have favored us, but the question of first importance in this case is one of fact. Did the defendant make those false representations with which he is charged ? If yes, we will go on to other questions; if no, that is the end of plaintiffs’ case.
This is an equity case, and this court must weigh the evidence to find the facts. Sometimes it appears from the record in an equity case that the evidence is of such a character as to show that the chancellor was in better position to judge of its credibility than the appellate court; in such case there should be a corresponding deference to his findings; but even then the responsibility of finding the facts is not lifted from this court. [Blount v. Spratt, 113 Mo. 48; Parker v. Roberts, 116 Mo. 657.] In this case there is little if anything to indicate that the chancellor had any better point of observation than those who read this record. The
Although under the conceded facts of - this case the defendant, at the time of the negotiations under investigation, was indebted to the plaintiffs in the amount found due on his final settlement in the probate court, and which was after-wards merged in the judgment against him in the circuit court, and which he had again acknowledged in his notes and deed of trust of date October 12, 1891, yet that was only the obligation of a cold contract; he was so bound because it was so nominated in his bond. In point of fact he had never received one cent of plaintiffs’ money, had never handled anything of theirs. The estate their father had left them had been squandered by their former curator. And nobody was deceived by this defendant’s assuming that burden. The sureties on the former curator’s bond had moved against him in the probate court on the ground that he was squandering the estate; they knew, and the probate court knew, and the attorney and uncle of these plaintiffs, then minors, knew that when this defendant came into the case he was simply assuming responsibility to those children for their estate that had already been squandered by their former curator. The attorney and uncle then representing those minors, acted as the attorney in effecting the transfer of the curatorship from one to the other. This defendant agreed to assume that responsibility in consideration of the conveyance to him of an eighty acre tract of land, which after the transaction was closed, he found to be mortgaged for as much as it was worth, and the attorney and uncle of these plaintiffs drew the deed. There is nothing in the evidence on that point to indicate that the attorney and uncle of the plaintiffs acted otherwise than in good faith and with good judgment, to save what he could for them, but reference to his activity in that
The defendant became bound by that obligation and was liable to its full extent as a matter of contract, as a matter of assuming another man’s obligation, but he has betrayed no trust, and if, when his obligation became due, he had not the money to meet it, it was not because he had squandered funds that had been placed in his hands to take care of.
The fact that nothing ever came into his hands as curator, the fact that when he assumed the curatorship there was no estate to take care of, does not impair his liability under his contract, but it does put him on a very different plane, both as to his credibility as a witness, and the character of proof required of him. A man into whose hands an estate belonging to children has been intrusted, and who betrays his trust, is justly treated with more suspicion, when he undertakes to defend his conduct, than a man who' has merely irnprovidently taken upon himself an obligation which he is unable to fulfill. The former may be able to show that he was blameless for the loss of the estate, and if he settles with his ward for a sum less than is due, he may be able to show that in the settlement he dealt with the utmost fairness, and for the best interest of his ward, and no advantage to himself at his ward’s expense; but he enters into that explanation with the presumption of fraud against him, and a demand from the law of the most satisfactory proof. And this presumption and demand are not founded on mere technical relation between the parties, but is founded upon the principle that men who betray such trusts are corrupt, and if they do such thing they are not too good to swear falsely when it is to their interest to do so.
But this defendant is not amenable to that accusation. He owed these plaintiffs money, but he owed them nothing
The learned chancellor who tried this case, in his written opinion filed, says that he disregarded all evidence tending to show that defendant had not in fact received anything of the plaintiffs’ estate; and thus he weighed defendant’s evidence and adjudged defendant’s conduct as he ought to have weighed the evidence and adjudged the conduct of a man who had squandered the estate of his ward, and had settled with him for about half that was due. That was disregarding the real facts to give effect to the nominal condition.
II. The charges of fraud are that defendant falsely represented that the lien of the deed of trust was “not a good and subsisting lien,” that defendant had employed lawyers in St. Joseph to fight it; that he had already given money and property to plaintiff’s attorney and uncle,, to the amount of $100; that defendant was insolvent, but that his father would help him to the extent of $1,000 if he could settle at that sum. As to the alleged misrepresentations concerning the validity of the lien, if the plaintiffs mean that defendant stated that it was insufficient in law, that was the expression of a mere legal opinion, and the statement that the St. Joseph lawyers were employed to contest the deed on that ground was immaterial. But plaintiffs do not mean that; they say that he told them there were prior liens on the land for as much as it was worth; he says that he told them the land was mortgaged and that if it were sold he did not believe there would be ánything for them. The evidence shows that there were prior incumbrances; whether or not the prior incumbrances wei*e equal to the value of the land was to some extent a matter of opinion. The eighty acres which the former curator had transferred to defendant, was included in a mortgage for several times its value, whieh mortgage covered also other lands, of the value of which we
But the ground on which plaintiffs chiefly rely is the alleged false representation that defendant had placed in the
There was a gentleman living in Maysville who was the uncle and attorney for these plaintiffs. He had been their attorney and guarded their interests at every stage of the case through the probate court, the circuit court, and in obtaining the deed of trust in question, and he still had those notes and deed of trust in his hands. Personally this defendant was an entire stranger to the plaintiffs and their mother, had never seen either of them until he went to Ohio, although he well knew their uncle at Maysville. They wrote him several letters importuning him for a settlement, and these letters induced him to go and see them. But before going he made arrangements to borrow $1,000, which he left subject to his check in bank in Maysville; he also had the deed of release in question prepared by an attorney which he took with him. Plaintiff Oharles was then about twenty-four years old, and his sister three years younger, married and keeping house with her husband. Up to the time he went to Ohio, if there had ever been any feeling of distrust
Now after these parties had talked the matter over in Ohio, and had agreed tentatively on the terms, the deed of release signed and acknowledged, but retained by the plaintiffs, defendant advanced $50 of the $1,000 to them to pay the expenses of Oharles to Maysville where the balance of the money was to be paid and the deed of release delivered. Charles says that the understanding was that he was to go to Maysville simply to get money and deliver the deed; defendant says it was that he was to investigate and take advice and close if it was satisfactory. Whether we take the statement of one of these witnesses or the other, the fact remains that defendant furnished Charles the means to go to Mays-ville before closing the transaction. If defendant had made the misrepresentations charged, is it not most improbable that he would have furnished the plaintiffs with means by which the falsity of his statement would almost inevitably have been discovered before the transaction could be closed ? If he had told this young man that he had given his uncle and attorney $700 worth of money and property for him, knowing at the same time that it was false, would he risk sending the young man, before closing the transaction, to the town where that uncle lived?
True, defendant testifies that Charles spoke disparagingly of his uncle, and requested defendant to say nothing
The evidence showed that. Oharles, whatever his motive may have been, was shy of his uncle when he got to Mays-ville; he reached there Saturday evening, went to a hotel and told a young friend there that he wanted to see Oapt. Ewart before he saw his uncle. The next morning (Sunday) he saw Oapt. Ewart in his bank, and talked with him about the proposed settlement, and Oapt. Ewart advised him, it was the best thing he could do. Oapt. Ewart was the banker who held the prior mortgages. After receiving' this advice, plaintiff Oharles delivered the deed of release to the cashier of the bank, and received the balance, $950, that had been left there for that purpose. That was on Sunday. Plaintiff had not seen defendant since they parted in Ohio. On Monday plaintiff called on his uncle and told him he had settled for $1,000.
The learned chancellor got the impression that Oharles, after getting the $950 at the bank, went to his uncle and demanded the $700 worth of money and property that he understood was there for him. And much weight is given this supposed fact in the written opinion in the record. But neither Mr. Hewitt nor Mr. Dalrymple testify directly to such a fact. The nearest that Mr. Dalrymple came to saying
Nor is the preponderance of the evidence with the plaintiffs on the proposition that it was a bad bargain for them. The defendant and the sureties oh his bond were insolvent. The decided preponderance of the evidence is that the utmost value of the mortgage security was from $800 to $1,000, with the expense of foreclosure and the trouble of arranging for the payment of the prior incumbrancers. By this settlement they got $1,000 two years before their mortgage was due, without expense or trouble.
The evidence also shows that whatever representations defendant may have made, the plaintiffs did not rely upon them, but went to Maysville (one of them, at least), and closeted with Capt. Ewart, the banker and mortgagee, in his office on Sunday, obtained his advice and then acted as he advised.
The evidence fails to prove either that the defendant was guilty of fraud, or that the plaintiffs suffered in the settlement.
III. Plaintiffs in their brief lay down the proposition that the payment of a smaller as in discharge of a larger sum admitted to be due, is no payment as to the overplus. That is a correct proposition of law when limited to the facts thus stated, and nothing more.
But there is a good deal more in the facts of this case than embraced in the statement of that proposition. In the first place, as we have seen, the debt was not due, and in the next place, the plaintiffs got all their security was worth, or that they could have realised out of it in any way. But
The plaintiffs have suffered wrong, but they have not suffered at the hands of this defendant. The motion to dismiss appeal and motion to affirm judgment are overruled.
The judgment of the circuit court is reversed.