53 Mo. 330 | Mo. | 1873
delivered the opinion of .the court.
This suit was originally brought in the Livingston County Court of Common Pleas, and taken by change of venue, by consent of parties, to the Linn County Court of Common Pleas.
The petition alleges in substance, that John L. Johnson, and Jasper N. Bell,with their wives, by deed of trust, dated 6th
The defendants by their several answers admit the execution of the deed of trust, and charge that the deed contained also, an assignment of a large amount of notes and accounts; that Johnson, the original trustee, entered, on the execution of the trust, and collected several thousand dollars of the outstanding debts, and made dividends of the. funds; collected amongst the creditors, and then refused to sell the lands, or to carryout any.further the provisions of the trust; that thereupon, at the- request; and upon counsel and advice of all parties interested, including the plaintiffs-, Mansur was appointed by the Circuit Court trustee, in place of Adamantine Johnson, the original trustee; and that as such trustee, by the advice and. consent of all parties, he sold the real estate, as mentioned in the petition, and the Bank of the State of Missouri bought a large amount of the same, and re-sold four hundred and ten acres to Perry, who in good faith paid for the same, took possession under his purchase with the. knowledge and consent of all parties, and made valuable and lasting improvements thereon to the amount of several thousand dollars; that the moneys realized from the sales of real estate by Mansur were paid over to the parties entitled thereto, by consent of all parties.
The answers further sot up, that the plaintiffs are bankrupts, having taken the benefit of the United States Bankrupt Law.
Upon the trial, the court excluded all evidence offered by the defendants in support of their answer, and made a decree substantially as prayed for by plaintiffs.
As the defendants offered to prove all the facts .stated in their answer, the main point presented by the record is, whether such facts constituted any legal or equitable defense to the plaintiffs’ petition.
It may be conceded, that the Circuit Court of Livingston Oountjr had no jurisdiction under this deed of trust to appoint
But although the appointment of Mansur was void, he, nevertheless, with the advice and consent of all the parties to the deed, creditors, sureties, beneficiaries and grantors, entered upon the discharge of his duties. All parties looked upon and treated him as the real trustee, holding the legal title, and he acted as such by making bona fide sales of the land and deeds to the purchasers. And the purchasers took possession in good faith, paid the purchase money, and made valuable and lasting improvements. And such purchase money was, in good faith and by consent of all parties, applied towards the debts secured by the deed of trust.
The deed of trust has thus in the presence of these parties, and by their consent, been executed, not by the original trustee, but by a person selected by the parties for that purpose.
Do not these facts constitute an equitable estoppel, and prevent these parties from denying the validity of Mansur’s acts in foreclosing the deed of trust ?
Where an owner of property stands by and sees another purchase his property or encourages him to do so, his title in equity passes to the purchaser. It would be a fraud to suffer the owner to disturb a title thus acquired. So in this case, it would be a fraud on the purchasers to suffer these parties to disturb titles created by their own advice.'
In my judgment, the facts set up by the answers of the defendants constituted a good equitable defense.
Let the judgment be reversed and the cause remanded.