Harris v. Dougherty

68 Mo. App. 105, 1896 Mo. App. LEXIS 497

• Court: Missouri Court of Appeals
• Decided: December 14, 1896
• Status: Published

Opinion

Gill, J.

Administration: recefvedf pay-d Ss behkTf": aetion. Plaintiff’s evidence tended to prove about this .state of facts: Mrs. Harris, the plaintiff, is the married daughter of W. D. Williams,, deceased, whose estate is represented by defendant Dougherty as administrator. In March, 1887, Mrs. Harris, while on a visit to her parents then residing on a small farm in Howard county, learned from her father that he was in a very embarrassed financial condition, and that he was about to lose his home by foreclosure of a mortgage or deed of trust, which he had placed thereon to secure a debt of something over $1,000. Mrs. Harris then had a few hundred dollars and with it she proposed to relieve her father. Thereupon it was agreed between them that Mrs. Harris should use her money to make a cash payment on the incumbrance, thereby reducing the debt and securing an extension; that Mrs. Harris should be permitted to sell the timber on the land which it was supposed would realize sufficient to pay off the remainder of the mortgage; that Williams and wife would convey the property, subject to the incumbrance, to their daughter — reserving, however, a life estate in the father and mother, or the survivor. Accordingly, Mrs. Harris paid $340 in cash to the holders of the mortgage and the same was extended. She also thereafter made repeated efforts to sell the timber so as to realize money to pay off the remainder of the incumbrance — sent different parties there to inspect the timber, and would probably have effected a sale and accomplished the purpose contemplated by the agreement — but the father withdrew his consent and refused to allow a sale of the timber. As a result of this the plaintiff' was unable to pay off and satisfy the balance due on the mortgage, and in course of time (December, 1890) the land was sold under the deed of trust, and Williams, the father, became the purchaser, for a sum equal to the remainder of the debt, interest and cost. In the year 1893, and shortly before his death, Williams sold the land at an advance of $900 over what it cost him at the trustee’s sale; and this money seems to have gone into the hands of the defendant administrator, and comprises about the entire assets of the estate.

The purpose of this suit by Mrs. Harris was to have the court declare the said $900 a trust fund held by the administrator for her use; or, as an alternative, that she be allowed as a claim against the estate the sum of money she had advanced to her father in the manner above stated, together with interest thereon.

The circuit court, it seems, gave ‘judgment for plaintiff in accordance with the latter prayer, allowing her $513.40, classified in the sixth class of demands against the estate. Defendant appealed.

The judgment of the lower court is for the right party. In so declaring we assume the facts to be as the evidence adduced in plaintiff’s behalf tended to prove and as the court found. It is not necessary to treat this as a suit to follow a trust fund, but as an ordinary action to recover money had and received. On the false promises of her father, the plaintiff was induced to pay $340 in partial liquidation of a debt against him, and in return for which she received nothing. It is true that under the agreement between Williams and Mrs. Harris she was to pay off the balance due on the mortgage covering Williams’ home, but this was coupled with and dependent upon the further agreement that to raise money for that purpose she, the plaintiff, should be allowed to sell the timber on the land. But after getting plaintiff’s money, he (Williams) refused this, and thereby put it out of plaintiff’s power to pay off the incumbrance. While, then, it may be said that Mrs. Harris was in default as to her engagement to satisfy the mortgage, and that by reason thereof the land was sold under the mortgage, in December, 1890, yet this default was brought about by the wrongful act of Williams; and neither he nor his representative can take advantage of this wrong.

Under the evidence introduced in plaintiff’s behalf Williams, the deceased father, had in his hands money of the plaintiff which in equity and good conscience his administrator ought not to retain..

The judgment is manifestly for the right party and will be affirmed.

All concur.