87 Mo. 468 | Mo. | 1885
This suit has for its object the divestiture of defendants of their legal title to the north half . of section thirty-three, township thirty-two, range thirty-three, in Barton county, and the investment of the title thereto in the plaintiffs, who are the heirs at law of George E. Ward, deceased. E. G. Ward, one of the plaintiffs, administered on said estate, and, as such, .instituted a suit in the circuit court, of Barton county, against one N. R. Cornell, and obtained a judgment for twenty-five hundred dollars, on which an execution issued which was levied upon the land in controversy, as the property of said Cornell, and at the sale of the sanie under said execution, on the tenth of May, 1872, Brown, one of the defendants, who was the attorney of said administrator in said cause, purchased it, and had the ■ amount of his bid, one hundred and sixty-five dollars, entered as a credit on the execution. He also paid, as costs of said suit, about one hundred dollars. On the same day he informed the administrator of his purchase, and that the estate could have the benefit of the purchase on payment to him of his fee for services in said , cause, and the money advanced to pay costs. The land .purchased, at the time, was worth from one dollar and fifty cents to three dollars per acre, but was incumbered ■with unpaid taxes, and the title of Cornell was doubtful, he and his wife having by deed dated the twenty-fourth of July, 1861, conveyed it to one Albright.
The present suit was instituted the eighteenth of (April, 1881, nine years after the purchase by Brown-, and after the lands had risen in value to ten dollars per acre. At the time of the purchase by Brown, all the .plaintiffs, except Josephine, were adults, and resided in Barton county. The administrator testified that Brown, at the close of the term of the court at which he purchased the land, told him the amount of the expense, he
Brown testified that he had no less than a half a ■dozen talks with Ward after the first conversation, and said to him: “You can let the matter stand as it is. I will pay the bid, deducting costs and expenses, and take the land and call it square, or he could take the land and pay me the amount I had paid out, and my fees.” That “ Ward always claimed that he did not have the money to pay costs and taxes, they having more land than they could 'take care of.” He also testified that, in 1873, lie said to Ward the matter ought to be settled, and Ward replied,' “You keep the land and pay the bid.” That they then had a settlement. Ward testified that he * ‘ never offered to take the matter off of his hands. He asked me to take the matter up. Brown told me how much it was right after the sale, and I never did attend to it, or offer to pay.” Ward testified that from 1872 to 1880, Brown said he held the land for the estate. But, in 1874, he conveyed an-interest in the land to Avery and Robinson, and they afterwards conveyed the land to the Edsells, and took a re-conveyance to themselves from the Edsells, who were unable to pay the purchase price. In 1874 the defendants commenced putting upon the land • valuable and permanent improvements, and continued making improvements until this suit was instituted. No claim to the land was asserted by the Ward
These are the substantial facts, and the above is a •synopsis of the testimony. On these facts and testimony, are the plaintiffs entitled to the relief they ask \ Brown was not instructed, nor was he obliged, as attorney, to attend the sale and purchase the land for the-estate, but having purchased it, although in his own name, the administrator had the option.to take the land. If he chose, he could have held Brown as a trustee for the estate. This is conceded by the appellants, and is unquestionably the law. It is equally well settled that the client must exercise,his right within a reasonable time. He cannot dally with the purchaser for years, and until the land appreciates greatly in value, and then assert a right. Bliss v. Prichard, 67 Mo. 181. In that •case the attorney was directed by his clients to purchase the land for them. He purchased the land and took the title to himself, but plaintiffs were defeated in their •suit to divest him of the title, because they had delayed to institute it eight years after they were informed that he had purchased, and taken the title in his own name, the land, in the meantime, having greatly appreciated in value. There was evidence in that case of bad faith on .the part of the attorney-. He was expressly directed to purchase for his clients. He did not inform them of his purchase, but they learned it from another party. In the case at bar, Brown was not instructed to make the purchase for his client, but having made it, immediately informed him of the fact, of the price paid and the expense incurred, and then, and repeatedly after, requested him to pay him his charges and expenses and take the land, which the client virtually declined to do, by never accepting the proposition, or taking any steps' in that «direction. Brown did not become a trustee by the pur
In addition to these facts, four of the seven plaintiffs have conveyed to defendants, by quit-claim, their interest in the land, the administrator himself being one of the four; The others made no claim until-1880; arid did not commence their suit until 1881. True, they say •they did piot know that Brown claimed adversely; but it is a little singular that, living in the same county, they did not learn in the seven years that Brown was improving, and selling, and re-purchasing the land, that he was claiming it as his own. Jas. Brown, one of the plaintiffs, testified that he did not know until 1881 that Brown, claimed adversely. He knew when he purchased at the .execution sale that Brown purchased for the estate, but. never spoke to Brown about it from 1872 to 1880. He was an adult residing in that county when 'the salé occurred and ever since. But- an answer to all this -is, that the administrator was Brown’s client. He represented the estate, and, in this matter, could bind the estate by his agreement with Brown, express or implied,, or by laches. The conduct of the administrator will warrant no other conclusion than that the estate had but .little money and considerable land. That the land in controversy was of but little intrinsic value, and that ■the condition of the title would not justify him in taking the land for the estate, by paying the attorney’s fees, and costs .expended by. Brown, -and,- as was said-in Prichard v. Bliss, supra: “The conviction is forced
The. judgment, which was for plaintiffs, is reversed*- and cause remanded.
