72 Mo. 503 | Mo. | 1880
This suit was instituted by William S. Gibbs in the Morgan county circuit court. In the petition plaintiff claims that he, as one of the grantors in a certain deed of trust, had the right to redeem certain real estate therein conveyed. This claim is based on the following state of facts: The said Gibbs and one Samuel Wilson were engaged in the mercantile business in Versailles, Morgan county, and being indebted to the defendants, who compose the firm of Samuel C. Davis & Co., in the sum of $3,200, for the purpose of securing the same, on the 14th day of February, 1869, executed a deed of trust, in which one Isaac G. Gibbons was the trustee, and by its terms was invested with the power of selling the .land conveyed in case of default in the payment of said debt. The deed of trust embraced both the property of Gibbs & Wilson. On the 4th day of January, 1872, there was a balance of $1,825 due on said note, and on that day the land mentioned in said deed of trust, and also a lot with a house on it in the town of Versailles, were sold for the purpose of paying the said over-due balance, and defendant Sproule, through his agent Simpson, purchased at said sale, said house and
It is, however, insisted that neither Gibbs nor his grantee is entitled to the benefit of this principle; first, s. estoppel. because Gibbs was estopped by his conduct and presence at the sale ; and, second, because of unreasonable delay in bringing his suit.
Gibbs swears that he first heard that his property was advertised for sale under the deed of trust the day before the sale was to occur; that he lived eighteen miles from Versailles, the place of sale; that on the day of the sale he was present; that he told Simpson he objected to his selling the property because he was not the trustee; that Simpson said he Ivas bound to sell as the company must
Before the doctrine of estoppel can be invoked as against Gibbs it must be shown that he either said or did something which influenced Simpson to act otherwise than he would have acted if the act had not been done or the
The case of Hereford v. National Bank of Missouri, 53 Mo. 330, represents a class of cases to which we have been-cited by counsel for defendant as justifying the application of the doctrines of laches and estoppel in the present case.We fail to perceive the analogy which it is claimed exists.In the case -referred to, by the advice and consent of all parties interested in the trust, a person other than the trustee was appointed to make the sales and was permitted to-execute the trust and make the sales, the proceeds of which were applied to the satisfaction of the debts, and the purchaser had made lasting and valuable improvements before proceedings were instituted to redeem, and relief was de-nied. In the case before us no improvements had been made; the consent of Gibbs that Simpson should make the-sale instead of the trustee, Gibbons, was not shown, but on the contrary the evidence tended strongly to show that Simpson was fully determined to make the sale without reference to the wishes of Gibbs, and with full knowledge-