107 Mo. 206 | Mo. | 1891
This is an action by petition in the nature of a bill in equity for the specific performance of an alleged parol contract for the conveyance of a tract of land known as the Mount farm, in St. Louis county, containing about four hundred and fifty acres.
On the twentieth of August, 1872, William C. Taylor being the owner, with his wife, Mary L. Taylor, executed a deed of trust conveying said land to William Pettis and Charles Parsons, trustees,-to secure the payment to Frederick Yon Sehraeder of seven promissory notes — one principal note of $20,000, payable three years after date, and six interest notes each for $1,000,-due respectively in six, twelve, eighteen, twenty-four, thirty and thirty-six months after date, all of said notes bearing interest at the rate of ten per cent, per annum after maturity, the grantors covenanting to pay all the taxes to be thereafter assessed against the property, and-any failure to do so to mature said notes.
Afterwards, on the twenty-seventh of October, 1876, the said William C. Taylor conveyed, subject to the deed of trust, said land to Marcus A. Wolff, in trust for the sole and separate use of his said wife, Mary L. Taylor. Mrs. Mary L. Taylor resided in the mansion house on said farm, occupying about thirty acres in connection therewith as her home, the remainder being rented to tenants and yielding a rental of about $1,300 per annum. Frederick Yon Sehraeder having died, his widow, the defendant herein as his legal representative, became the holder of the notes secured by said deed of trust. The interest notes seem to have been paid as they matured, and the interest on the principal
Several witnesses were introduced on each side who gave opinions of the value of the land at the date of the sale, ranging in their estimates, from $60 to $150 per acre.
Some time after the sale the defendant obtained possession of part of the land by attornment of some of the tenants, and óf the remainder by an action of ejectment in the circuit court of St. Louis. To this- action of defendant, in which the plaintiff, Mortimer L. Taylor, husband of plaintiff, May L. T. Taylor, and others were parties defendant, the said May L. T. Taylor, plaintiff, became a party, and, in a separate answer, set up as a defense thereto the same contract which she now seeks to have specifically enforced by this action. Prom the judgment rendered against the defendants in the ejectment suit they appealed to the St. Louis court of appeals, but failing 'to give a supersedeas bond, the defendant herein had her writ and was put in possession. The court of appeals affirmed the judgment of the circuit court, but upon appeal to this court the judgment against the plaintiff herein, May L. T. Taylor,
The contract set out in the petition, which plaintiffs now seek to have enforced, is substantially that at some time before the sale under the deed of trust, Mary L. Taylor having made an agreement with her daughter, the plaintiff, May L. T. Taylor, to convey to her the real estate in question in consideration of love and affection, and that her daughter and her husband would provide a home for her during her natural life, the defendant, in order to effectuate said purpose, entered into an agreement with the said May L. T. Taylor, by which it was agreed that the defendant should cause the land to be sold under said deed of trust, and at said sale would purchase and thereafter convey the same to the plaintiff, May L. T. Taylor, and the said May L. T. Taylor,, with her husband, would execute a note and a deed of trust upon the property to secure the payment of $20,000, and pay all accrued interest and taxes, and costs of the sale, and any other moneys that might be found to be due on said real estate, except the said sum of $20,000, so to be secured by said deed of trust.
The petition then avers in substance that the sale under the trust deed was advertised and made, and the land purchased by defendant, in pursuance of said agreement; that immediately upon the advertisement of said property for sale, and in pursuance of said agreement, the said May L. T. Taylor took exclusive possession of said real estate and made valuable improvements thereon, with the knowledge of defendant, expending therefor large sums of money, etc.; that the fact that said sale was to be made, merely for the purpose of transferring the title of the said Mary L. Taylor to her said daughter, May L. T. Taylor, was made known to the public in various ways by all the parties concerned in
The answer admitted the execution of the deed of trust, sale and purchase, the recovery in the action of ejectment, and that defendant is in possession of the premises; denied all the other material allegations in the petition, and set up pleas of the statutes of limitations and frauds, and a plea of res adjudicata. The court upon the hearing dismissed the bill, and plaintiffs appeal.
For the' purpose of proving the contract set out in the petition the plaintiff, May L. T. Taylor, her husband, Mortimer F. Taylor and her mother, Mary L. Taylor, were introduced as witnesses, who all testify that they were present, and, with defendant, were the only persons present at the defendant’s house when and where the alleged contract was made. Their testimony is too. voluminous to be set out in full. Mr. Taylor was the spokesman, and acted as the agent and attorney of his wife, who, with her mother, substantially corroborated his testimony as to what passed at this interview. ■ It will be sufficient to set out the conversation between him and Mrs. Schraeder as detailed by him, by which plaintiffs claim the contract in question was made. After answering some preliminary questions and making some introductory observations, he said : “We went immediately to the matter in hand and I said to her (Mrs. Schraeder) that .at the request of my wife and mother I had come up to see if there was
The witness says this was practically the close of the interview between the parties. Upon being further interrogated as to whether Mrs. Yon Schraeder said .anything about intending to request a foreclosure he' •answered: “The only way that it was referred to at .all was the remark to Mrs. Taylor that the whole of the loan was not hers ; that it was made to her husband ; that her children were interested in it, her husband having died, and added she would sacrifice the whole of it, if it was hers, rather than take the property from Mrs. Taylor.” And in this connection the witness testified that at that time the property had not been ¡advertised ; that he looked for it in the paper next morning but did not see it, and didn’t see it until the morning after (as the advertisement was first inserted in the paper on the sixth of March, conceding that the ¡advertisement he then saw was the first one ; this interview must have been as late as the fourth of March, instead of the latter part of February, 1877, as he testifies in the beginning).
The witness then testifies that he did not again see either Mrs. Yon Schraeder or Mr. Parsons until the day before the sale. He testifies that on that day, “I went to see her and she came into the parlor. I said (to her, ‘Mrs. Yon Schraeder I have come to ask you to
The witness was asked what occurred then, and answered, “I said: ‘I have just sent Mrs. Taylor to the house to see if you will not withdraw the property from sale, I hope now you are here, with Mr. Parsons he will consent to it being done. * * * We talked some time, and she said, ‘ I do not know whether we are going to get the money from the place or not, even if we carry the loan on.’ I said : ‘ We have every confidence in the world in turning the property and we-
He then says it went up on $1,500 bids until it was finally struck off to the person who was bidding for Mrs. Yon Schraeder at her bid (about the amount of fihe debt). He then says, “ 1 went to the carriage, I do -not know who notified her or whether she could hear •the bidding, she seemed to be aware of the fact that ■the property had been knocked down to her, and she said, ‘Now it has gone the way you wanted it anyhow.’ I says, ‘It has, but 1 am afraid it is accidental.’ She says, ‘ Whether it was or not it has gone your way. Now do you propose to carry out the agreement youspoheoff I said, ‘Madam, I shall only be too glad to do it. I wanted to do it in the first instance, and the only reason why I wanted you to withdraw it from sale was, I was afraid I would not be able to carry it out, and the property would be sacrificed.’ She said, ‘You must see Mr. Parsons and see about carrying this •out.’ I was standing at the north abutment of the courthouse and said to Mr. Parsons, ‘ When can I get from you the amount of the interest and back taxes on the pro; 'erty. ’ He spoke up rather gruffly, and said, ‘ I am mot going to be all the time waiting to carry this out, jou will have to be doing it between now and Saturday
The witness then testifies that he did not again see Mrs. Schraeder or Mr. Parsons in regard to this matter ; that th,e sale took place on Wednesday or Thursday; that on the afternoon of the sale he sent his brother-in-law, Philip V. Taylor, to the bank to see Mr. Parsons rand get information of the amount that would have to be paid ; that he sent a note to him to the same purpose •by his office boy the next afternoon. Again on Saturday and again on Monday, but received no reply, the messenger boy reporting on Monday that Mr. Parsons •said, “ It was useless to be writing him any more notes,” .and that he was tearing them up and throwing them in the waste basket. About the same time a gentleman representing himself to be the agent of Mrs. Von Schraeder presented himself and demanded possession, and this ended the negotiations.
Mr. Mortimer Taylor further testifies, that in this matter he was acting as the agent and attorney of his wife; that the alleged contract was made by and for her. Mrs. Mary L. Taylor testifies that six or seven months 'before the alleged contract was made she had turned ■over all her property to her daughter, May L. T. Taylor. And it appears from the evidence that for some time previous to the first interview between them and Mrs. Von Schraeder, the mother and daughter and hm husband had ■been living together in the mansion house on the premises, that the mother was already largely indebted and was being pressed upon her liabilities; and that in order to •save her property from the claims of her creditors she had turned it over to her daughter, and she and her daughter and her daughter’s husband concocted and presented to Mrs. Schraeder the scheme of having a sale made ■under the deed of trust as alleged in the petition for the purpose of saving the mother’s interest in the farm, by vesting the title in the daughter, subject to the deed ■of trust.
Mrs. Von Schraeder and her daughter and Mr. Parsons testified for the defense, the testimony of the former and the latter so far as they bear directly upon the matters set out in the plaintiff’s evidence is as follows ;
Mrs. Olivia Von Schraeder, plaintiff, testified: “In February or March, 1877, I called upon the trustees and requested foreclosure ; they advertised the property for sale under the deed of trust. I remember receiving a visit from Mrs. Mary Taylor and Mortimer F. Taylor, at my house on Garrison avenue; the property was advertised for sale under the deed of trust at the time. They were the only two that came to the house, the only ones I saw, — Mrs. William G. Taylor and her son-in-law, Mortimer F. Taylor. I did not see them at my house but once. I had never seen Mrs. May L. T. Taylor until she was pointed out to me at the county seat when we met there on Monday. The mother I know, but the daughter I did not know. I never met her and had no acquaintance with the daughter at the time of the visit from Mrs. Mary Taylor and Mr. Mortimer F. Taylor. On that occasion Eloise Von Schraeder was present. She entered the room with me and remained until they.left. On that occasion Mrs. Taylor was much affected, and she wept. Mr. Taylor did all the talking, and I did the listening. It was to postpone-the sale. The visit was that the sale should be postponed; the sale of the Mount farm, then advertised to be sold. Mrs. Taylor was much affected, and I would like to have done something for her. Nothing was said, only to postpone the sale, and Mrs. Taylor recounted her troubles, which were very harrowing to the feelings of a woman who had been the schoolmate of Mrs. Taylor. I think they both asked it. They did not ask that anything, else be done except that a postponement of the
Miss Eloise Von Schraeder’s testimony in regard to-the interview, at which she says she was present, was to-the same effect as her mother’s.
Mr. Parsons testified : “ I remember making a sale-under the deed of trust. I advertised the property at-the instance of Mrs. Von Schraeder. It was advertised in order to get the title to the property, or the money, either one or the other. I think I was called upon prior to the sale by young Mr. Taylor who testified yesterday (Phil. V. Taylor). I think I saw Mortimer F. Taylor also once before the sale. Mr. Philip and M. F. Taylor-met me at the Four Courts, I think, within a day or two of the sale and wanted it postponed. I am under the impression that I received some notes from Mortimer F. Taylor before the sale. I have not any recollection of receiving any note or memoranda from Mr. Taylor after the sale. My impression, that the burden of these notes was to get the sale postponed. Mr. Pettis and myself attended the sale, and made it as trustees. Nothing was-said or done at the sale, or at any time before to my knowledge to deter bidders. I desired to sell for money. I had not been informed at any time prior to the sale-that anyone had undertaken or was engaged in efforts to prevent competition at that sale. I urged Mrs. Von Schraeder before the sale if she got a payment of the interest and taxes to let the matter run, or if she could get $2,000 even, because I did not think the property
"Q. Isn’t it likely, inasmuch as you were advising her to get a payment from the parties in interest, if she could, and they were calling to see you,'that you were-expecting this sale to be stopped by the payment or by some arrangement between the parties? A. After it-was advertised I hoped they would make a payment, and advised her if they did, to stop the sale. I said: ‘If they offer you a reasonable payment, I certainly would postpone the sale.’
“Q. Did she tell you that the Taylors had called to see her about the matter? A. She said they had called to get the sale postponed.”
I. The plea of the statute of limitations seems to cut no figure in the case. The plea of res adjudicata, is not sustained by the record of the ejectment suit. It is true that the cause of action herein set out was pleaded by May L. T. Taylor in that suit, and judgment was rendered against her in the circuit court, which was affirmed in the court of appeals ; but upon-appeal to this court that judgment against her upon her separate plea was reversed, and held to be a nullity, she being a married woman, consequently there was no final adjudication of that plea, or of the present cause of action.
II. “The onus of establishing by clear and satisfactory evidence a contract which it is sought to have specifically enforced is cast upon the party who sets it up, and asks its enforcement, and unless this is done a court of equity will not decree specific performance.” Strange v. Crowley, 91 Mo. 287; Taylor v. Williams, 45 Mo. 80; Veth v. Gierth, 92 Mo. 97. “ The acceptance,” to conclude a contract, “must be unequivocal, unconditional, and without any variance of any sort between it and the proposal.” Strange v. Crowley, supra; Fry on Spec. Per., secs. 166, 167; Pomeroy, Spec. Per., see..
The testimony in this case falls far short of establishing the contract set out in the petition clearly and satisfactorily by evidence so cogent as to leave no room for a reasonable doubt. That of the witnesses for the plaintiff, introduced for the purpose of substantiating the contract, is flatly contradicted by the evidence • of "the witnesses testifying for the defendant. So far as can be seen from the record, they are equally worthy of credit. It consists of their recollection of events that transpired nearly nine years before the time they testified — and the most that counsel for plaintiff claim (in 'their able argument), or could claim, is that it is more probable that .the version of plaintiff’s witnesses is true than that of the defendant’s. A conclusion, which ■is no more than a probability, based upon such evidence is a doubtful one at best and ought not be made the basis for a decree for specific performance of a parol contract with reference to lands. But, even if the evidence for the defendant be eliminated and the case be considered .-.alone upon that of the plaintiff, it fails to satisfy the .mind that any contract was ever entered into, such as is set up in the petition. A brief glance at one phas'e ■«of the case as thus presented must suffice. According to the evidence of the Taylors, they concocted the ¡scheme of this contract at home, knowing that some action was about to be taken under the deed of trust, .and went to Mrs. Von Schraeder’s that day for the •express purpose of getting her to enter into the desired arrangement; the ladies preceded Mr. Taylor by enough ■time to enable them to relate their troubles, excite Mrs. Von Schraeder’s sympathies, and communicate in a
This deduction is confirmed by the fact, as will be observed in Mr. Taylor’s evidence, that whenever thereafter he approached her on the subject he was invariably referred to Mr. Parsons, whatever conversation may have preceded. It is not pretended that any contract was ever entered into for hpr by Parsons by virtue-of said reference, and we think, upon the plaintiff’sown evidence, it cannot be found that Mrs. Von. Schraeder did or ever intended, by what she said, to conclude any unconditional contract with the Taylors.upon the subject.
III. Even though such a contract as plaintiffs set' up had- been satisfactorily proven, there .are several.
Second. The alleged contract is void, being within the statute of frauds. There was no delivery of possession under the contract, and no valuable and permanent .improvements made upon the faith thereof. Mrs. Yon Schraeder had not the possession and could not deliver it. The only pretense of a delivery of possession is that .Mrs. Mary L, Taylor, upon their return home from the interview with Mrs. Yon Schraeder, told her household that from that time on they would look to her daughter for orders, and directed her son, William, to turn over what he had there to her daughter’s husband. The possession of the land remained just it was before, the Taylors living there just as they did before, and nothing •done thereafter by the plaintiff that is not just as reasonably referable to their former occupation of the premises and the relation they sustained to their mother as to .any supposed contract. There was no actual or visible •change of possession. The case of Simmons v. Headlee, 94 Mo. 482, upon which plaintiffs rely upon this point, was overruled by the case of Emmel v. Hayes, 102 Mo. 186.
The only improvement shown to have been made is that Mr. Mortimer Taylor testifies, that he caused some of the fences to be repaired at a cost not exceeding
Third. The alleged contract was without consideration. Mrs. Von Schraeder was to receive nothing except her own, if it had been consummated, and she had no assurance of receiving that, except the unenforceable promise of a married woman. The contract remained as absolutely executory after as it was when- the interview was had; although Mr. Taylor sold some personal property and discounted some notes, as he testifies on the faith of the alleged agreement, and to prepare to execute it, of the money he received, none of it was ever tendered or came to the hands of Mrs. Von Schraeder.
Fourth. The plaintiff, Mrs. May L. T. Taylor, is in no position to complain that the land did not bring at the sale as much as it was worth. She is seeking to uphold the sale and to enforce a contract that was dependent'upon the land bringing no more than it was sold for. She had no interest in the land, and could not have acquired any, according to the alleged agreement, unless Mrs. Von Schraeder became the purchaser. If the land was sacrificed through any fraudulent acts of the parties to the alleged agreement, the owner is the one to complain, not the beneficiary of the fraud.
If the agreement charged was entered into, and in pursuance thereof representations were made by the parties thereto, by which bidders were deterred from bidding, or anything done to prevent the property bringing its full value, the creditors of Mrs. Mary L. Taylor are the sufferers from the wrong and the parties
After going carefully through the whole of the evidence in this case, we do not find that the plaintiffs have a single leg to stand on in a court of equity.
The judgment of the circuit court is affirmed.