126 Mo. 131 | Mo. | 1894
— The plaintiff -Turner commenced this suit against Morris D. Rees. The latter died while the cause was pending in the circuit court, and it was revived in the name of his devisee and the administrator de bonis non of his estate,, with the will annexed.
It is alleged in the amended - petition that plaintiff conveyed one thousand acres of land to Rees, by a deed absolute in form, dated the sixth of -June, 1882; that the deed was in fact made to secure $2,500 advanced by Rees for the use and benefit of Turner; that Rees at the same time agreed to use the tie timber on the one thousand acres and on seven hundred acres and on still another eighty acres and allow Turner therefor the sum of five cents per tie, the amount going to Turner for the tie timber to be applied in payments of
The answer admits that Turner conveyed the one thousand acres to Rees by deed absolute in form, though intended as a security as alleged. It admits the alleged agreement as to ties to be taken from the one thousand acres, but denies that the agreement covered ties to be taken from the other tracts, and denies that Rees received more than twenty thousand ties from and after the sixth of June, 1882. New matter is alleged which will be noticed hereafter.
The suit, it will be seen, is one for an accounting and to divest the devisee of Rees of the title to the one thousand acres. The issues of fact were heard by a referee who found there was due to the plaintiff, after deducting all advances and payments made by Rees, the sum of $3,685.85. The defendants appealed from a judgment entered on the referee’s report.
1. The first question in the case arises out of the following facts: The cause was sent to the referee after an amended petition and an answer thereto had been filedandbeforethe plaintiff filed a reply. When the cause came on for hearing before the referee, the plaintiff offered to file a reply, thereby putting in issue the new matter set up in the answer, but the defendants objected. As to this offer, the referee says in his report: “I permitted the replication to be presented and herewith return it with the papers, and have heard the case as if it had been properly filed.” After the referee’s report and exceptions thereto had been filed, the court allowed the reply to be filed nunc pro tunc, and of this ruling, and also that of the referee, the defendants complain, insisting that the new matter set up in the answer stands admitted.
The pleadings ought to have been made up before
It is true the defendants in this case made the point before the referee that no reply had been filed, but they thereafter went on and put in their evidence the same as if a reply had been filed, and this being so, the court did not err in allowing the reply to be filed nmc pro tunc.
2. The next question is whether certain facts set up in the answer constitute any defense. The new matter presenting this issue of law is to the following effect: That the plaintiff has no right of redemption, because his interest in the land was sold to one Joy at a sale under an execution issued on a judgment rendered in 1885, in favor of Joy and against Turner; and in this connection it also alleged that Rees purchased the interest thus acquired by Joy and paid therefor the sum of $250, the deed having been made in 1885.
In support of this defense we are cited to authorities which hold that a mortgagee does not stand in the position of a trustee, and that he may purchase the
3. This brings us to the various objections made to the referee’s statement of the account. To an understanding of these objections it may be stated here that the seven hundred acres and the one thousand acres are situated on the Osage river, in what is called “Brouse bend.” The eighty acres mentioned in the pleadings and another eighty mentioned in the evidence are located some three miles below, at the mouth of Sugar creek. On the sixteenth of December, 1879, the plaintiff Turner purchased of Brouse the timber on all of said lands. Subsequently, and on the tenth of December, 1881, he purchased the one thousand acre tract. He owed, as a deferred payment >on this purchase, the sum of $2,500. On December 23,1881, he and Rees entered into a written contract by which Rees agreed to use the tie timber on all of the before mentioned lands and pay Turner five cents per tie, payments to be made monthly
The petition, it will be seen from what has been said, counts upon an agreement of date June 6, 1882, and makes no mention of the prior contract of December 23, 1881. On this state of the pleadings, the defendant administrator insists that Rees should not be charged with any ties cut on the land prior to June 6, • 1882. He also insists that the accounting should be confined to ties taken from the thousand acres, because the contract of the last named date was not put in evidence, and the answer admits the alleged agreement only in so far as it relates to the thousand acres.
It is evident the petition was prepared without an accurate knowledge of the facts of the case, still we1 think the referee did n'ot err in stating the account so as to include all the ties taken by Rees from all of the lands. The reliable evidence shows that Rees commenced cutting ties in February, 1882, and prosecuted the work with vigor from that date to and after the sixth of June, 1882. The parties themselves seem to have made no distinction between ties cut before and after that date. Looking to the course of business between the parties, it is evident the agreement of the sixth of June, 1882, was but a modification of the prior one. Instead of paying for the ties monthly, Rees agreed to, and did, pay the $2,500 debt owing by Turner. Besides all this, the defendant claims in his answer, and claimed on the trial, a credit for the $1,000 paid under the first contract. If entitled to that credit, as we think he is, he ought to account for the ties
■ The evidence as to the number of ties taken from the land is very general and unsatisfactory. It does not show by any count made in the woods, or on the banks of the river, how many were cut. The referee was obliged to state the account on the basis of ties shipped by rafts and boats from Brouse bend and Sugar creek; and the evidence of the ties thus shipped consists wholly of the recollection of witnesses who speak of matters which occurred eight or ten years before the date of the trial. The referee charged Rees with one hundred and thirteen thousand, eight hundred and fifty-one ties. Entering into this estimate is an item of twenty-five thousand spoken of by the witness Northup. This witness says he received for Rees at Osage City, forty miles below Brouse bend, from twenty-five thousand to thirty thousand ties “in 1881 and 1882, more in 1881 than in 1882.” He says he received them from Elisha Dawson and another person whose name he does not state, and that the ties came down by raft.
The referee having stated the account by charging Rees with ties taken from Brouse bend and Sugar creek, ought not to have included the same ties when landed at Osage City. To state the account in that way was to charge Rees twice with the same ties. But, aside from this, it is very clear these ties mentioned by Northup had nothing to do with the contract between Rees and Turner, for Northup says he received them at Osage City for Rees in 1881 and 1882, more in 1881 than in 1882. Now the evidence shows beyond all doubt
Many of the witnesses give their opinions as to the amount of tie timber on the lands when Rees took possession under his contract with Turner. These opinions are, at best, no more than random estimates, and they are entitled to but little consideration. But, taking them all in all, they show no more than this, that the entire one thousand, eight hundred and sixty acres would average forty or forty-five ties per acre; and this estimate falls short of that made by the referee, after deducting the twenty-five thousand. From a careful examination of the evidence as set out in the transcript, we have grave doubts whether Rees cut as many as eighty-eight thousand, eight hundred and fifty-one ties from all of the lands, but we do not feel justified in further reducing the referee’s estimate as to the number of ties cut.
As to the $800 charged by the referee to the Rees
Turning now to the other side of the account, we find the referee gave the Rees estate credit for interest on the $1,000 paid by Rees on December 23,1881, the date of the original contract; but did not give the estate credit for the $1,000. This was manifestly a mere omission in stating the account, and the omission must be corrected here.
It follows, from what has been said, that Rees should be charged with eighty-eight thousand, eight hundred and fifty-one ties at five cents per tie, and with the $300, making $4,742.55. From this should be deducted the $1,000, the $2,500, and also $250 paid by Rees to the First National Bank of Jefferson City, leaving due to the plaintiff on the sixth day of June, 1882, the sum of $992.55. We have made a rest in the accounts at that date, because the $2,500 were paid by Rees at that time. Again, the evidence does not show the amount of the monthly installments due for ties cut, but it does appear that the greater part of them were cut at and prior to June 6, 1882. We may, therefore, with fairness treat the whole amount due for ties cut as due at that date. We have not allowed the Rees estate interest on the $1,000, because, according to the agreement of December 23, 1881, that payment was to be deemed the last one to be made for ties to be cut, and there is no stipulation for interest in the interim. We have not allowed interest on the $2,500 paid by Rees for Turner, because the evidence does not show what, if any, interest was paid by Rees.
Balance due the plaintiff on June 6, 1882..................... $ 992 55
Interest on same to August 14, 1889........................... 428 00
Kents collected during six years........................... 416 00
$1,836 55
DEDUCT.
Taxes paid for years 1882 to 1887 Tooth inclusive................$ 220 44
Check of April 10, 1884.......:........................... 118 25
Interest to August 14, 1889.............................. 37 32
Paid Herman Bank on August 14,1889 ..................... 800 00
$1,176 01
Balance due the plaintiff on August 14, 1889........■..........$ 660 54
To this amount interest must be added from the last named date to the date of the judgment to be entered in this court, at the rate of six per cent, per annum. As the rents were collected and taxes paid annually, in small sums, we have not calculated interest on these amounts on either side.
The judgment of the circuit court is, therefore, affirmed in so far as it divests defendant Carrie E. Butler of the title to the land and invests the same in the plaintiff, and in so far as it relates to costs in the circuit court; but it is reversed in all other respects, and a judgment will be entered here for the plaintiff and against the administrator cle bonis non for $660.54 with interest added as before indicated. The defendants will have judgment for the costs of this appeal.