| Mo. | Feb 29, 1912
This suit was begun by H. N. Phillips and wife; Susan A. Phillips, in the circuit court of Dunklin county, Missouri, on the 25th day of May, 1904, against Robert J. Jackson and wife, Mary A. J ackson.
“And it is hereby further stipulated and agreed by and between the parties herein, that the proceeds arising from the renting of the said land shall, from year to year, and as long as the debt herein mentioned remains unpaid, be collected by the party of the third part, your wife, or her agent, you, and shall be applied as fast as collected as follows: 1st, In payment of the interest of the debt; and, 2nd, In payment of the annual taxes of said land; 3rd,' The remainder to be paid on the principal of this debt and so on from year to year until this debt is fully paid.”
And that on the 1st of January, 1897, they turned over the possession of said land to Robert J. Jackson as the husband and agent of Mary A. Jackson to have and to hold in pursuance of the uses and trusts contained in said deed of trust; that on the 1st day of October, 1896; plaintiffs were the owners of twenty-one town lots situated in the city of Malden, Dunklin county, Missouri; that on the 2nd day of October plaintiffs suffered judgment in the circuit court of Dunklin
Plaintiffs allege that they relied wholly upon these promises and agreements, and permitted the sheriff to execute a deed to the said Robert J. Jackson as agent to his wife, conveying all the lands for the- said sum of $1000. Although there were many prospective bidders present at the time of said sale, the said lands were never offered by separate lots or tracts, mad the sum of $1000 was a grossly inadequate price ;• that upon the day following said sale plaintiffs surrendered
The petition then sets out the names of the heirs and children of Robert J. Jackson to whom they have made conveyances of certain interests in said lands, al■leging such conveyances were with full knowledge on the part of the grantees of the trusts to which said lands were subject and were taken without valuable considerations.
The petition prays the court to set aside the sheriff’s deed, and to adjudge the defendants to be trustees of the land thereunder conveyed as shown by the terms of the deed of trust to them and as was agreed between the parties before the sheriff’s sale of all of said lands; that all conveyances between Robert J. Jackson and his wife and between them and any of their children be set aside and held for naught; that an account be taken and plaintiffs be permitted to pay any sum that may be due from them to the defendants, and for general relief.
Some of the defendant heirs filed general denials; two of them and the mother, Mary A. Jackson, in addi
Issues were joined by replication. The exeeutioxa. of the trust deeds „and the other deeds referred to ira the petition was not disputed. The contrariety of evidence relates to what was the agreement between H. Nl Phillips and Robert J. Jackson, acting for their perspective wives, at the time of the sale of all the land under execution on March 17, 1897.
H. N. Phillips testified, in substance, that he and Jackson reached an agreement before the sale that the* property should be sold in bulk and bid in by Jackson, for $1000; that he told the sheriff of this agreement and requested him to offer the property for sale as a-whole; that Doctor Jackson’s bid for this amount was-the only one made, and the land was struck off at once-to him; that there were' other prospective bidders who-were informed of this agreement; that the understanding between himself and Doctor Jackson was this;“That the land included the town-lots upon which he-had no mortgage, and the whole thing be sold for $100Qr and he was to go on and do as he agreed to do in the-deed of trust for $6700; and when he paid himself out of the rent of that land it was to be turned over to us. He was to proceed under the provisions of the $6700-deed of trust. At the time of the sale he had had possession of the farm land since October the year before.. Immediately after the sale the town lots were turned over to Jackson.”
“Office of Robert J. Jackson, Physician and Surgeon, Bloomfield, Mo., July 12, 1897. H. N. Phillips, Atty. at Law, Poplar Bluff, Mo. Dear Friend I have rtoday received an account of the land rented is about :500 acres rented from about $2.75 to $3.00' per acre and I think the land is all rented. I wish you was Over and let us see about some plan of work for the future. I want you to write me by return and I will go down and see about the matter and find if any is not rented. Tours as ever, Robert J. Jackson.”
On the back of this letter was an indorsement of the names of the tenants and the number of acres and
The testimony of Mr. Bledsoe, who was put in charge of the farm lands after the sheriff’s sale, was, in substance, that he was familiar with the market value of the land in 1897; that it was worth twenty dollars an acre, that the town lots were worth from $100 to $250 apiece; adding, “The reasonable rental value of this farm in 1897 was three dollars per acre. I rented it for that. I do not think I have rented over 500 acres. I rented 500 acres at three dollars per acre.” Adding, “Doctor Jackson came down and went over the land with me, he said that he didn’t want to have any more improvements made on the land than was really necessary; that Mr. Phillips did not want any more and he didn’t either, but he wanted to see
Witness then refers to some improvements, and adds, “I had charge of the land from 1897, in March, to 1899, about December, I think. I collected the rent on the place for Doctor Jackson for the years 1897, 1898, and 1899. I was in charge of the place for Doctor Jackson so far as collecting the rent was concerned. . . . I was put in charge of that place by agreement of Doctor Jackson and Mr. Phillips. I was to «collect the rent and turn it over to Mr. Jackson. They agreed on me to do that. That was on the day of the sale at Kennett after the sale was made.” Adding, “These conversations that I had with Doctor Jackson in which it was said that the rents were to be paid by me to Doctor Jackson and that Doctor Jackson was going to let Colonel Phillips sell the place, occurred along at various times. It was there at Kennett that I first beard of it, and at various other times Doctor Jackson would come down and go out with me over the farm. At one time I asked him what he would take for a certain piece of land. He said, ‘I couldn’t sell it. I promised to deed this back to Mr. Phillips when I got my money back. ’ ’ ’
For the plaintiff, Thomas Bradley testified, in substance:, “I heard a conversation just after the sale between Colonel Phillips and Doctor Jackson. I think they were in the hall near the sheiiff’s office, and Doctor Jackson said to Mr. Phillips that he didn’t want the land; all that he wanted was his money and the interest out of it, and they spoke of an agent that would collect the rent and pay it over to Doctor Jackson. The Doctor says it won’t take many years to pay up. He said Mr. Phillips was to have the land; that he would •deed the land back to him. I was present when the sheriff sold the land. I was deputy sheriff at that time.
Hugh Mitchim also testified for plaintiffs, in substance, that he kept a livery stable at Malden, and when Doctor Jackson came down, went over with him to show him the land, with which witness was entirely familiar; that he took him to the different renters, one of whom, Dell Thomas, wanted a house built; “that Dr. Jackson replied, he could not do this because Phillips did not want any improvements on the land except what was absolutely necessary to cultivate it. He didn’t want any improvements put on the land because he wanted the land to be paid out as quickly as possible, as quick as he could. As quick as he could get the principal, note and expenses out of the land he would have to deed it back to Phillips. ’ ’ That witness also asked Doctor Jackson what he would take for the McQuerter land. Jackson replied “that he could not sell it to anybody; that he was holding the land for Mr. Phillips, and could not sell it unless Mr. Phillips agreed to it.”
Dell Thomas, one of the tenants on the farm, testified for plaintiffs that he requested Doctor Jackson to build him a house, and he replied to him, “I can't build the house for this reason: Mr. Phillips don’t want to be put to any more expense than he can help and I don’t either, because I want to get my interest and turn the land back to Mr. Phillips.” That this conversation took place in the last of March, 1897; that Doctor Jackson and Mr. Mitchim were in a buggy; that the witness
Plaintiffs introduced the deposition of Doctor Jackson. This witness stated on cross-examination, that he went to ICennett on the day of the sheriff’s sale, March 17,1897, as the agent of his wife; that all he did there was as her agent. He added, ‘ ‘ My wife’s mortgage did not cover the town lots. I did not say I agreed with Colonel Phillips, on the day of sale at Kennett, that I would buy in all the land advertised for sale in bulk and that he should redeem, it from me in any time within two years. I did not say that I had agreed with Colonel Phillips at all; I never made an agreement with Mr. Phillips. One of his friends called to me and took me to a room and plead with me to buy it, and he guaranteed that Phillips would take it off my hands within two years; that party was Mr. Wear; he was the judge of the court then, and he was the man that made the agreement. I just told him, ‘Judge, if you will guarantee this to me, I will buy the land in question in for two years.’ I was to have possession of the farm immediately. After I bought it, I went into possession. I did that.” Witness added that there was no agreement as to rents; that his first bid was for $1000, and that no one bid against him; that he understood that was the amount of the indebtedness. Adding, “At any time that Phillips wanted the land back within two years he was to have it; he was to pay me just every dollar that I was out; there was not a word said about giving him credit for the rents I had collected in the meantime. ’ ’
“Q. Then I understand you that Mr. Phillips at any time within two years could take the land all back that was sold that day by paying you the $1000 and pay the $6700; due to your wife, with interest on that account. A. And any other indebtedness whatever it might be. Q. Well, what other indebtedness was talked about? A. Well, there was several little
For defendant, J. Gr. Wear testified that on the day of sale, during the session of the circuit court, of which he was judge at the time, with the assent of Mr. Phillips, he called on Doctor Jackson to get him to buy in the land and explained to him that he thought he would be safe in doing so, and that he thought Phillips could pay it off in a year; that Jackson replied, “I will give him two years; if he can redeem in two years he can have it;” that this witness went back and told Phillips what Jackson had proposed to do, and said that was the best that could be done. Witness knew nothing about any further agreements between the parties. At the time of his testimony he
Defendants read the depositions of R. H. Jones, who drew up the sheriff’s deed at the time of the sale of the land, March 17, 1897, and who testified that he was paid for this by Doctor Jackson, to whom he delivered the deed, finding him at the time in the sheriff’s office in company with Mr. Phillips; that when he spoke of his business (to deliver the deed) he was asked to wait until an agreement between them was made; adding, “As best as I now remember Mr. Phillips was wanting time in which to redeem from Doctor Jackson on the land that was described in this particular deed. Doctor Jackson was insisting on receiving his money, that he did not want the land but he could not give him the time to redeem the same that Mr. Phillips was wanting. Mr. Phillips asked him if he would not. give him five years, I think it was five, in which to redeem it, and the Doctor refused to do it, but offered to give Phillips one year. Mr. Phillips told-the Doctor that was not what he had agreed to do before he purchased the land and that he was trying to hold him up. For some little time after that the discussion was pretty warm between them and Doctor Jackson finally said he would give him two years in which to redeem the land and not any more. The Doctor paid me what was due. I delivered the deed and left him and Mr. Phillips in the sheriff’s office disputing over the matter.
The trial court made a finding of facts and law, and dismissed the petition for the reason that plaintiffs, in his opinion, had failed to make out their case with that degree of certainty required, and that if they had, they would be debarred by laches From this decree plaintiffs perfected their appeal to this court.
I. Prior to the sale under execution of ail the lands described in this suit, the respective interests of plaintiff and wife on the one hand and Doctor Jackson and wife on the other were fully defined by the terms of the trust deed executed in February, 1896. and the parties thereto had the rights and were subject to the duties prescribed in that instrument, and no others. The important question, therefore, is, What change was created by the .transactions through which Doctor Jackson got the sheriff’s deed to the mortgaged property and some twenty-one town lots, embraced in the mortgage?
There is no room-under the facts in this record for the application of the technical doctrine of merger of two titles. That rule is upheld in equity when it accords with the intention of the parties, but it is neither upheld in equity nor at law unless two titles, a greater and a less, have coalesced in the same person. In the case at bar the deed of trust on the farm was to a third party for the benefit of Mrs. Jackson, and ■the sheriff’s deed was made to R. J. Jackson; heneen there was no merger and this point may be excluded from view in the further discussions of the case. This-leaves the transaction with only three possible aspects. Was it a conditional sale, an equitable mortgage or a constructive trust arising out of the wrongdoing of the purchaser?
The equitable principles governing these three subjects are clear and fixed. They have been repeatedly announced by this court. Whether a given state of facts constitutes a conditional sale of land vesting the title in the buyer, subject only to a right on the part of the seller to rebuy within a specified time, depends upon the intent that this should be so, and the extinguishment of all indebtedness, past, present and future, between the parties. For, if any indebtedness between them survives the transaction, or if it is in
In the case at bar there is no dispute that the amount of the bid to be made at the execution sale on the property was fixed by agreement at one thousand dollars; that the property was purchased at and for that sum upon one bid. The amount of the execution was about four hundred dollars. The surplus of this bid is not claimed to have been paid to the plaintiffs or either of them. The plaintiffs contended' that it was to be applied to an indebtedness on their part to the Dexter Bank of about $456. It appears from a letter written by Dr. Jackson that this was subsequently done, for in his letter of August 13, 1897, he spoke of paying that debt; adding that he would “hold the papers until the matter is fixed up in full. ’ ’ This was five months after he had acquired the deed to the property at the sheriff’s sale. It is not claimed in this case that any note representing the previous indebtedness of the plaintiffs to Doctor Jackson and his wife was given up or surrendered or paid at the' time of this purchase under the execution sale. On the contrary, any and all evidences of debt which ever ex
Again, it appears from the positive statement of several witnesses that immediately after the acquisition of the sheriff’s deed, Doctor Jackson to them and in their presence stated that he could only make such repairs as were necessary to the cultivation of the land or to secure rent of the town lots, since Mr. Phillips did not want any other expenses to be incurred, in order that the indebtedess due to Doctor Jackson should be paid, as soon as possible, and the property deeded back to Mr. Phillips. Again, the manager of the property, Mr. Bledsoe, who was in charge of it immediately after the sale to Doctor Jackson, stated that Doctor Jackson explained to him that no more improvements must be made than were necessary, for Mr. Phillips “was to have it back and the rents were to be applied on the taxes, interest, improvements, etc.; that the rent was to be applied to the debt.”
Under this state of facts the conclusion is irresistible, that the transaction in question was not an absolute sale of the property based upon the extinguishment of all indebtedness between the parties, leaving the plaintiffs the mere right of repurchase within two years.
II. Was it an equitable mortgage? The circumstances.surrounding the transaction of purchase at the sheriff’s sale were, in brief, these: Jackson’s wife held a note of plaintiffs ’ for $6700, covered by deed of trust on their farm. The equity in these lands had been levied upon under an execution which was also levied upon twenty-one town lots. Jackson admits he agreed before this sale to buy in the property and give plaintiffs two years to redeem. He bought it for the price fixed by agreement at one bid. It was sold in a lump, no other bids being made. Immediately on getting
To our minds the proof as to these facts is positive and convincing; and resting largely on the written statement of Doctor Jackson, it leaves no doubt! but that he intended at the time to hold the property under the sheriff’s deed for the purpose of security and repayment of the note for $0700 and the amount, $1000, which he bid for the lands. This being his intention, as well as the intention of the plaintiffs at the inception of the transaction, its character as a mortgage was thereby ineffaceably stamped upon it under the settled rules of law. The result was that he became trustee of the town lots under an equitable mortgage; and the sheriff’s deed to him in so far as the town lots are concerned became in the eye of a court of equity a mortgage on them to secure any and all the indebtedness from the plaintiffs to himself and wife. •
The mortgage thus created by the acts and in accordance with the intention of the respective parties -©f necessity remained a mortgage, and the deeds from ■ Jackson to his wife and from them to their children, dby way of advancement, did not carry any further title ithan he had, and left these grantees subject to the same trusts and duties which existed against him.
We have announced the law applicable to this case on the theory that the facts made out a case of an equitable mortgage or a constructive trust growing* out of his wrongdoing, saddled upon Doctor Jackson and his privies. We made these rulings to cover all the issues. The allegations of the petition are broad enough to entitle plaintiffs to redress on either theory, especially in view of the fact that it prays for general relief. The fault of the pleader consisted in his omission to state specifically the equitable theory for which he desired redress.' However, it is well settled in this State, that in a suit in equity under our statutes, the court may give any relief consistent with the allegations and pleadings; and that where the petition contains prayers for general relief, it may also give relief different from the specific relief sought. [Mead v. Knox, 12 Mo. 284" court="Mo." date_filed="1848-10-15" href="https://app.midpage.ai/document/mead--beekman-v-knox-6612622?utm_source=webapp" opinion_id="6612622">12 Mo. 284; Holland v. Anderson, 38 Mo. l. c. 59; Henderson v. Dickey, 50 Mo. 161" court="Mo." date_filed="1872-03-15" href="https://app.midpage.ai/document/henderson-v-dickey-8003581?utm_source=webapp" opinion_id="8003581">50 Mo. 161; Mason v. Black, 87 Mo. l. c. 346; Vogelsong v. St. Louis Wood Fibre Plaster Co., 147 Mo. App. 578" court="Mo. Ct. App." date_filed="1910-03-22" href="https://app.midpage.ai/document/vogelsong-v-st-louis-wood-fibre-plaster-co-6625931?utm_source=webapp" opinion_id="6625931">147 Mo. App. 578.]
IV. We do not think that the plaintiffs have suffered any preclusion in this case on the ground of laches. The trust deed executed in February, 1896, seems to have been treated by the parties as a continuing trust under the provision therein for the collection of the income from the property and its application to the payment of the debt. It is not shown in this record that there has been a sufficient amount of rents collected to discharge that indebtedness. As the defendants saw fit to treat the deed of trust as a continuing security (although it contains a provision for foreclosure) they are not in a position to charge plaintiffs with laches in, also treating it as a continuing security.
This action was brought in 1904, and there is nothing in the record from which we can see that plaintiffs were sooner entitled to a restoration of their property on the ground that the indebtedness against it had been paid. Hence, the defense of laches is not available to defendants. It may be on the taking of an account in this case that the plaintiffs are still indebted to the defendants; if so, they should be required to pay such indebtedness in full before recovering the property transferred to secure the same. The
The judgment herein is reversed and the cause remanded with directions to the trial court to proceed to take and state an account in conformity with this opinion; to decree the sheriff’s deed executed to Doctor Jackson on the 17th of March, 1896, to have been intended as an equitable mortgage, and to render such further decrees as to conform to this opinion. It is so ordered.
PER CURIAM. — The foregoing opinion of Bond, C., is hereby adopted as the opinion of the court.