63 Mo. 72 | Mo. | 1876
delivered the opinion of the court.
To understand the object of this proceeding, it will be most convenient to state the facts upon which it is based, especially as they mainly appear from written documents, contracts, receipts, deeds, etc.
The petition was filed in 1873. On the 1st of February, 1866, the Han. & St. Jo. R. R. Co. sold to one Ann M. Webb eighty acres of land for $1,360, or $17 per acre, payable in ten annual instalments, of $136 each, with interest at six per cent., payable annually in advance, the first payment to be made February 1,1867, and others at the corresponding date of succeeding years, the last payment being due Feb. 1, 1876. The contract contained a receipt for $81.60, interest in advance for the first year; it contained stipulations for inclosing and improving certain proportions of the land annually, and prohibitions against removing timber except for fences or building, and covenant for the punctual payment of interest and principal, and also for paying the taxes. The contract also contained the following stipulation : “And it is agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in this contract. And in case the second party shall fail to make the payments aforesaid, and each of them punctually, and upon the strict terms and times above limited, and likewise to perform
This contract was signed by both parties, and no notes were given, the contract being executed in duplicate. On this contract were indorsed receipts for money, to-wit: March 23,1869, $40.80 ; Oct. 16,1869, $42.40 ; June 6, 1868, $228.32, amount of third payment; June 6, 1868, $9.08 ; May 7, 1869, paid by Wilmarth, $200. This contract was assigned by Anna Webb to J. T. Zimmerman, on October 18th, 1867 ; on the 21st of September, 1868, J. T. Zimmerman assigned the same to D. G. Wilmarth, and executed a quit-claim deed to Wilmarth for the tract of eighty acres, and another tract of eight acres lying north of the railroad and adjoining the first tract. On the 15th of July, 1871, said Wilmarth assigned the contract to plaintiff, Orr, and executed a quit-claim deed to Orr for both tracts, for the consideration expressed of $5,000.
In March, 1878, the agent of the R. R. Co. for the sale of their lands, who was the father-in-law of Cornelius Zimmerman, by direction of the land commissioners and general land agent, sold this land (the eighty acres) to Sylvester Zimmerman, at twenty dollars per acre, on one and two years’ time, and a cash payment of $534, and the payment of back taxes, amounting to $250. Sylvester Zimmerman had been apprised that the land was for sale, by a communication from John Zimmerman, a younger brother of Cornelius. The contract between the R. R. Co. and Sylvester Zimmerman is substantially like the one with Webb, except as to amounts, etc. Gne-half interest in this contract was assigned to Christopher Zimmerman, of Indianapolis.
These facts are recited in the petition, and it is charged, that after the land had been greatly enhanced in value by improvements, etc., in excess of the debt secured by it, the defendants, Cornelius and Sylvester, for the purpose of preventing the subjec
The prayer is for the sale of the land and the application of the proceeds to the payment of the moneys due from J. T. Zimmerman to plaintiff, and for general relief.
The answer of Sylvester Zimmerman denied the charge of fraud and collusion with the railroad company. The R. R. Co. and the administrator, Woodruff, did not answer, and a default was taken.
In the decree of the court it was found that there was due the plaintiff, on the demands set forth in his petition, as assignee of Wilmarth, $2,628.26 ; that $568.86 bore ten per cent, interest, and $2,060.35 bore six per cent.; that J. T. Zimmerman conveyed, by assignment of the Han. & St. Jo. R. R. Co.’s contract with Webb, and also by quit-claim deed to Wilmarth ; that upon this assignment and conveyance, Wilmarth, at the request of said Joseph, executed to Cornelius Zimmerman a title bond, etc. (as hereinbefore stated) ; that said Cornelius accepted said bond with its conditions and the court' further finds that the contract of the Han. & St. Jo. R. R. Co. with Sylvester T. Zimmerman, one-half of which was assigned to Christopher Zimmerman, was made in fraud of and to the prejudice of the rights of the plaintiff, and that the equity of the plaintiff under the first contract made by the Han. & St. Jo. R. R. Co. with Ann M. Webb and her assignees, is superior to that of defendants, Sylvester and Christopher Zimmerman.
It is further decreed that all the right and title of Cornelius Zimmerman to the eight acres be sold to satisfy the debt of plaintiff, .and that all the title of Sylvester Zimmerman, Cornelius Zimmerman and Christopher Zimmerman to the eighty acre tract be sold, or so much as may be necessary to pay plaintiff after the sale of the first mentioned tract of eight acres, and to pay the Bum of $1,250.84, the amount paid by Sylvester Zimmerman and Christopher Zimmerman to the Han. & St. Jo. E. E. Co., as above stated, with six per cent, interest. It is further ordered, that this last debt be first paid, and then the unpaid balances to plaintiff; that such sale of the eighty acres be made subject to any unpaid balance due or to become due the Han. & St. Jo. E. E. Co.
It would seem difficult, upon an examination of the facts disclosed by this record and the decree of the circuit court, to conjecture upon what grounds the decree could be expected to be reversed. The railroad company, though nominally a party defendant, and properly so, has really no interest in this controversy, and so far as the eight acre tract of land is concerned, it is not pretended that the decree was in any respect improper.
The principal point discussed in the briefs of the counsel is, the right of the railroad company to exact a forfeiture of the Webb contract, and re-sell the land to a portion of the defendants. Although courts of equity, notwithstanding their abhorrence of forfeitures, will not interfere where the exaction is made for the -protection of the vendor, and under circumstances where a strictly legal right is fairly claimed, with full notice to the vendee (Hansborough vs. Peck, 5 Wall., 497), yet, where the right
The second sale in 1873, by the agent of the railroad company to the uncle of his son-in-law, without any notice to the representatives of the first purchaser, at a price exactly equal to what was then due on the original contract, has an awkward appearance in a court of equity.
However the facts may have been, the decree below fully protects the company from any possibility of loss, if indeed, they needed any protection, having the title in their own hands, and accordingly we find the railroad company not complaining. And the defendants, the second purchasers, are given a priority over the plaintiff’s claim in securing their advances out of the proceeds of the land. The decree seems to be just, and we are unable to perceive in it any violation of any principle of law or equity. It is therefore affirmed.