192 Mo. 477 | Mo. | 1905
This is a proceeding in equity to set aside a conveyance of fourteen and fifteen one-hundredths acres of land in St. Louis county, from the defendant Kittlaus to the defendant Wittich; and to declare the defendant Kittlaus a trustee for the plaintiff for an undivided five-sevenths interest in the land; and to charge the two-sevenths interest remaining .in Kittlaus with a lien for five-sevenths of $165, received by Kittlaus for the condemnation of one and fifteen one-
the issues.
The petition alleges that in April, 1897, the plaintiff became the purchaser of the undivided interest of one Ponath, amounting to 17.382 acres in a larger tract of land in St. Louis county; that a partition suit was then pending against Ponath for the land, and that the plaintiff, on his own motion, was made a party to the suit; that by the decree in partition the plaintiff was awarded seventeen and three hundred and eighty-two one-thousandths acres, and the same was charged with the plaintiff’s portion of the costs in partition, amounting to $329.50; that the plaintiff was unable to pay said costs, and that the land was about to be sold to satisfy said costs; that desiring to save the land, the plaintiff induced the defendant Kittlaus to advance or loan him a sum of money sufficient to bid in the land, and in pursuance to that arrangement, entered into a written contract with the defendant on the 15th of April, 1898, which provides as follows:
“First. That at a certain sheriff’s sale, to take place on the 18th day of April, 1898, in the county of St. Louis, Missouri, of 17.382 acres, more or less, of land in said county under an execution against one Edward H. Ponath and others, the said Louis Kittlaus will put up and pay, if a joint bid hereinafter mentioned is successful, upon a joint bid by said Louis Gloeckner and said Kittlaus for such property so to be sold, the sum of $500 and no more; and that said Gloeckner will put up and pay the additional sum, if any, upon each joint bid.
‘ ‘ Second. That said Louis Gloeckner shall be the party to make such joint bid, and shall exercise his own*483 discretion in making and continuing such hid, but said Gloeckner shall make no bid at said sale for or with any person other than the said Kittlaus, or enter into any agreement providing for or effecting the same. .....t
‘ ‘ Third. If the j oint bid of said Gloeckner and said Kittlaus at said sale is successful, then the title to said property is to be transferred to them in the following proportions, to-wit, to Louis Gloeckner an undivided five-sevenths interest; to Louis Kittlaus an undivided two-sevenths interest.
“Fourth. Nothing herein contained shall be construed to prevent said Louis Kittlaus from bidding at said sale, on and for his own and sole account, so long as any bidder or bidders other than or besides said Louis Gloeckner shall continue to make or offer any bid or bids.”
That thereafter on the 18th of April, 1898, said Kittlaus and plaintiff entered into a further agreement as follows:
“It is hereby agreed that if Louis Kittlaus buys at sheriff’s sale 17.382 acres on the 18th day of April, 1898, in the county of St. Louis, State of Missouri, for a sum of money exceeding five hundred dollars, he is to share with Louis Gloeckner as follows: If the land is bought by Louis Kittlaus for a sum between $501 to $700, he agrees to give Louis Gloeckner eight hundred dollars’ worth of same property. If land is bought for $701 to $1,000, he agrees to give Louis Gloeckner six hundred dollars ’ worth of property in land. ’ ’
The petition then alleges that under the agreement and modification of the agreement, aforesaid, it was agreed and mutually understood that Kittlaus should do all the bidding at said sale on the joint account of Kittlaus and the plaintiff, and that an undivided two-sevenths should be conveyed to Kittlaus as compensation for his advancement of such money, on any successful bid that he might make at said sale up to the sum of $500, and’ that the remaining five-sevenths
The answer is a general denial, except as otherwise admitted in the special pleas. The special pleas admit the setting aside of the land to the plaintiff in the partition suit and the charging thereon of the costs stated, but allege that the interest so set apart to the plaintiff was subject to the interest of Ponath and Brueggemann in the land, and that said partnership* estate was insolvent, and that “the demands against the same entirely exhausted said interest and land; ’ ’ admit the execution of the first agreement of the 15th of April, but aver
The case made is this:
The plaintiff had a judgment against Ponath. Ponath owned an interest in a larger tract of land, of which the land in controversy was a part, and a partition suit was pending therefor. The plaintiff caused Ponath’s undivided' interest to he sold and became the purchaser thereof. He then, on his own motion, was made a party to the partition suit, and in that suit was awarded 17.382 acres. But his interest was charged by the decree in partition with the payment of $329.51, his proportion of the costs in the partition suit. The plaintiff was in financial distress and was unable to pay the costs. In addition Ponath had previously executed a mortgage on the whole land for $5,000, and a suit to test Ponath’s right to thus mortgage partnership property was pending. Plaintiff’s attorney advised him to permit the land to be sold under execution to satisfy the costs and to clear up the title; and further advised him either to buy it himself, or if he was unable to do so, to procure some friend to do it for him. The plaintiff and Kittlaus were members of a Turner society in St. Louis, the plaintiff being an officer and Kittlaus an instructor in the society. They had been friends for seven or eight years. Plaintiff applied to Kittlaus for assistance in the matter, with the result that they procured an attorney to draw up the agreement of April 15, 1898, hereinbefore set out. The plaintiff’s attorney was not informed of this arrangement, hut throughout the transaction rested under the impression, given him by the plaintiff, that Kittlaus was simply acting as his friend in the matter. The land was to he sold on the 18th of April, 1898, in St. Louis county. On that day the plaintiff and Kittlaus went to Clayton, and before the sale entered into the written agreement hereinbefore set out, on the 18th of April, 1898. There was no consideration paid by the plaintiff to Kittlaus for en
The plaintiff’s testimony tends to show that two and a fraction acres were first pnt np and that plaintiff made no bid therefor, and that Kittlaus and third persons bid thereon, and the land was finally sold to such third persons. Then the 15.30 acres were offered for sale. Plaintiff made no bid therefor at all. He says in his oral testimony that the reason he did not do so was that he and Kittlaus understood the agreements to be that Kittlaus was to do the bidding, and that the plaintiff was to abstain from bidding, and the petition so alleges. Plaintiff’s testimony further shows that Kittlaus and other persons bid on the 15.30 acres, and that it was finally knocked down to Kittlaus for $450.
The. testimony on behalf of the defendant tends to show that the plaintiff made bids for the 15.30 acres, and that when the bids had reached $380 to $385, Kittlaus told Gloeckner that the $500 had been exhausted— that is, $380 for the 15.30 acres and $160 for the two and a fraction acres, amounted to more than $500, and that thereupon plaintiff ceased bidding, and Kittlaus commenced to bid against the third parties, who were also bidding, and finally became the purchaser for $450. The defendant, Kittlaus, further says that when plaintiff did not bid on the two and a fraction acres, he asked him why he had not done so, and plaintiff replied that he understood it was $160 an acre, and thereupon Kittlaus asked him where his legal adviser was, and plaintiff replied that his legal adviser thought it was advisable for him to stay away from the sale. Plaintiff’s adviser testified that he was present at the sale, standing between the plaintiff and Kittlaus. Kittlaus said plaintiff’s adviser was present, but was not taking any part in the sale, was ninety feet away from the place of sale, and “was walking up and down with an umbrella under his arm on the pavement outside of the building.”
The testimony of both parties shows that after the
The sale took place on the 18th of April, 1898, and the deed was made to Kittlaus, and duly recorded, within about a week thereafter. Plaintiff knew, at that time, that a deed to the whole property was made to Kittlaus, and made no objection to the conveyance being so made. Plaintiff says he had no conversation with Kittlaus from that time until 1902, when Kittlaus told him that the litigation concerning the property, which was then pending in this court (and which Kittlaus had been conducting and paying all the expenses incident to it), was about won, and Kittlaus asked plaintiff if he would stand some of the expenses, and that plaintiff replied that if the old contracts were cancelled he would stand some of the expenses of the litigation, but that if the old contracts were not cancelled, then, the matter must stand in the way it then was. Plaintiff further says he told Kittlaus at that time that he had made a contract and ought to stand by it; that he had given him a good chance to make a whole lot of money out of it; that he only wanted to get “my money again.” That Kittlaus said, “If I don’t want to spend any money in case the suit is lost, then we leave it the way it is. ’ ’ Kittlaus’s version of this branch of the case is, that in the fall of 1901, the plaintiff notified him he wanted to see him, and when they met, he explained to plaintiff how the litigation concerning the property stood and how hard he had fought the same, and that he understood plaintiff still asserted some claim to the property, and asked him if he was willing to stand a portion of the expense of the litigation in case the suit was lost, and that plaintiff refused so to do, stating that he had
The litigation was won by Kittlaus, and thereupon plaintiff asserted a claim to a five-sevenths interest in the property. Kittlaus refused to allow him any interest in it.
When cross-examined with reference to the $500 mentioned in the first agreement, and with respect to whether or not he, plaintiff, was to repay that amount to Kittlaus, and as to whether he had ever offered to pay that amount, or any other -amount, the plaintiff said he did not exactly understand that branch of the case, but finally took the position that he was under no obligation to return the whole or any part thereof, or to pay any part of the expenses of the litigation concerning the property, taking the position that the two-fifths interest in the property to be allowed Kittlaus was to compensate him for the $500 advanced by him to bid in the whole property.
Upon this showing the chancellor dismissed the bill and entered judgment for the defendants, and, after proper steps, the plaintiff appealed.
I.
The theory of the plaintiff seems to be that Kittlaus was to advance $500 to bid in the property, and to have a two-sevenths interest for so doing, and that the plaintiff was to have a five-sevenths interest free of all claims; and further that the arrangement between them was that Kittlaus was to do the bidding at the sale and that the title was to be conveyed in the proportions aforesaid, to the parties, and that relying upon that, the
There is no basis for such a theory under the issues in this case. The petition sets out the original contract of April 15th, and also the alleged written modification thereof on the 18th of April. Neither of those contracts required or contemplated that Kittlaus should be the bidder for the property on joint account. On the contrary, the first contract expressly provided that the plaintiff should do the bidding and should buy the property in on joint account, and that the plaintiff should furnish the excess over $500 which the defendant was to advance or loan in order to acquire the title. The modification of the contract does not specify who should do the bidding. There is, therefore, no foundation in the pleadings for the claim that Kittlaus was to be the bidder, and that the plaintiff was to refrain from bidding. It is true the petition states, after setting out the contracts, that the' parties mutually understood that Kittlaus should do the bidding, and that the plaintiff should refrain from so doing, but there is no provision, even in the oral agreement, to that effect, and such a condition or deduction cannot be drawn from the language of the written contract itself, but on the con-' trary is directly contrary to the express terms of the contract.
The testimony for the plaintiff tends to show that lie did not bid at all. If that is taken as true, then the plaintiff did not perform his part of the contract. It is nncontradicted that the plaintiff did not furnish the excess over $500, necessary to buy in the property on joint account. He says he had no money with which to do so, and that Kittlaus knew that fact. But the contract required him to do that, if the land sold for more than $500. The land did sell for more than $500. Under this view, therefore, the plaintiff failed to show that he had complied with his part of the contract, and, therefore, was not entitled in equity to compel the de^
The original arrangement, as embraced in the written contract or as disclosed by the oral testimony, is very difficult of understanding. The plaintiff, himself, did not seem to understand, when interrogated, whether or not he was to repay Kittlaus the $500 to be advanced by him, hut he finally took the position that the conveyance to- Kittlaus of the two-sevenths interest was to< compensate him for the $500, and that the plaintiff was to return no part thereof, but that he was to have the five-sevenths interest in the property free of all claims. Two-sevenths of $500 would amount to $142.85. If plaintiff’s position is correct, therefore, Kittlaus was to give $500 for the privilege of getting property of the value of $142.85. The whole property actually sold for $610. Two-sevenths of that sum would amount to $174.28. Under plaintiff’s theory, therefore, Kittlaus was to pay $500 for a two-sevenths interest in the property, which was worth only $174.28. This conclusively demonstrates that the contract never contemplated anything of that character, hut clearly contemplated that, for his services in advancing the $500, Kittlaus was to receive back the $500 advanced, and a two-sevenths interest in the property. If that is not the true construction of the contract, then the absurdity is presented of Kittlaus giving or agreeing to give $500 for land that was only worth $174.28, and of making the plaintiff a present of property worth $437.72. To place such a
It will be observed, however, that the plaintiff sets out both the original contract of April 18th, and, what he denominates the modification thereof, of the 18th of April, and treats the latter as a mere modification of the former and not a substitution for it, and then the pleader avers that it was mutually understood and agreed, between the parties, under the. modified agreement, that the -plaintiff should refrain from bidding, and that Kittlaus should do all the bidding at the sale on joint account.
The agreement of April 18th is a most remarkable agreement, and is inconsistent with the agreement of April 15th. Under the original agreement Kittlaus was to furnish $500 and the plaintiff was to furnish any amount in excess thereof necessary to buy the property. Kittlaus was to have a two-sevenths interest and the plaintiff a five-sevenths interest. The plaintiff was to do the joint bidding, and if third persons bid, Kittlaus was to have a right to bid on his own account. The modified agreement provided that if Kittlaus paid more than $500 for the property, the plaintiff was to share in the property in the following proportions,, that is, if the' property sold for a sum between $501 and $700, the plaintiff was to have “$800 worth of same property;” and if it sold between $701 and $1,000, the plaintiff was to have “$600 worth of the property in land.” Nothing was said in the modified agreement about the plaintiff doing the bidding, nor does that agreement seem to contemplate that the plaintiff was to furnish the excess over $500 as the original agreement provided. Yet under the modified agreement, if Kittlaus bought the land for a sum between $501 and $700, the plaintiff was to have $800 worth of the same property, etc. In other words, if the property sold for $501, Kittlaus was to pay the $501 and to give the plaintiff $800 worth of the same property that had sold for $501. Or, other
If this is not the true meaning of -this remarkable agreement then.the only other construction that can be put upon it is that the parties must have considered the land worth at least $1,500 to $1,700, and that it would not sell, in any event, for more than $1,000. The land actually sold for $610. Tet the uncontradicted evidence in the case is, that the portion of the land purchased by Kittlaus was the poorer portion, which was subject to overflow, and that it had no outlet. And further, that it sold for its full value, if not more.
But it is useless to pursue this feature of the case further, for the simple reason that there was clearly no consideration to Kittlaus to support the agreement of April 18th, nor is the petition predicated upon that agreement, for the plaintiff claims an undivided five-sevenths of the property, as provided for in the original agreement, and because the contingencies covered by the modified agreement never arose. The original agreement contemplated the purchase of the 17.382 acres for $500, which was at the rate of $28.76 an acre. The 15.30 acres at that price would amount to- $440.02, which was about the price Kittlaus paid for it. The 15.30 acres brought just above the price the parties contemplated when they made their first agreement; and the second agreement, even if it was a valid contract, would not apply to the facts in this case.
The bill contains no offer to refund any part of the $500, and the plaintiff contends that he- was not obliged to return it, because of his theory of the case,
The extreme novelty and uniqueness of the plaintiff’s position is further illustrated by his refusal to contribute anything towards the expense incurred by Kittlaus in defending the title to the property. The plaintiff says he offered to pay a part, not specified, of such expense, if Kittlaus would cancel all prior contracts, and give him a half interest in the property. Such generosity on his part is incompatible with his prior and subsequent conduct in the case, for if he was entitled, as he here claims, to the five-sevenths interest in the 15.30 acres, and was not obliged even to refund the proportionate part of the purchase price that had been paid by Kittlaus, it is inconceivable why he should agree to pay any part of the expenses and take only a half interest in the property instead of retaining the five-sevenths interest, without paying anything. •
Plaintiff cites and relies upon cases which hold that where property is sold in partition, and one of the tenants in common buys it in his own name, in consideration of the other tenant in common refraining from bidding at the sale, the one who buys it in holds it in trust for all. Those cases have no application to the case at bar, for the manifest reason that in such cases the tenant in common who refrains from bidding, furnished a part of the consideration for the purchase of the land, to-wit, his proportionate share of the property. Moreover, this is not a case of a tenant in common bidding at a partition sale. It is simply a case of the land of the plaintiff being subjected to seizure and sale for the payment of his debts, and, under even the strongest view of the case taken by the plaintiff, of Kittlaus furnishing all the money, and, according to plaintiff’s
Plaintiff also cites and relies upon a line of cases which hold that where one furnishes the money and another buys the property, and takes it in his own name, a resulting trust arises in favor of the party who furnished the money. But it requires no great degree of perspicacity to see that such is not this case. The plaintiff furnished no money at all and according to his theory was not required to furnish any and was not able to furnish any.
If such a case as this could be held to create a resulting trust, it would afford a very advantageous method for a debtor to have his debts paid, and still retain or preserve five-sevenths of the property levied on for the payment of his debts. Almost any debtor would be glad to enter into such an arrangement. It would be the work of supererogation to attempt further amplification or demonstration in this case. The petition does not state a cause of action, and the plaintiff’s testimony not only contradicts the written instrument, but, if true, presents a condition beyond the conception of the ordinary human mind, and one which the plaintiff failed to comply with on his part.
The judgment of the cii-cuit court is right and it is affirmed.