Stevenson v. Saline County

1. Practice, Supreme Court: bill of exceptions: motion fob new trial. A motion for a new trial, not incorporated in the hill of exceptions, though contained in the transcript, can not be noticed by the Supreme Court. 2. Estoppel: recognition of title in another. Where one procures an order of a county court for the. sale of land, as of land then claimed by the county, and in the order the land is spoken of, as that “ formerly owned ” by the person procuring the order, he is estopped to deny or recall this recognition of title after another has acted upon it by purchasing the land of the county, paying the purchase money and making improvements thereon. 3. Equity: laches. It is too familiar a principle to require discussion that equity does not foster the prosecution of stale demands, encourage laches, or lend its aid to any but the prompt and vigilant. 4. Case Adjudged. Suit was instituted April, 1873, to redeem lands sold May, 1864, in virtue of an order of a county court, under a “school mortgage” from plaintiff to the county, made August, 1S60, and bought in by the county. The land in April, 1869, was sold by the county to defendant for the amount of the mortgage debt and interest thereon. Defendant testified that prior to making _ the deferred payments of the purchase money, plaintiff stated that “all he claimed, was his wife’s dower;” plaintiff testified that he “ did not think ” that he ever so stated. Aside from this testimony, it appeared that plaintiff had, in 18C8, treated the land as belonging to the county, by procuring an order from the county court for its sale to his son, in which order the land was spoken of as that “formerly owned” by plaintiff, and though defendant had not seen this order, he was not ignorant of its substance. It also appeared that defendant had made improvements upon the land, and had completed payment of the purchase money two years prior to the institution of this suit, which was brought shortly after the decision in Ray county v. Bentley, 49 Mo. 236, to the effect, that counties could not become purchasers at sales made under school mortgages. Seld, that the decree of the trial court, canceling- plaintiff’s notes, and transferring the legal title to the land to defendant, was correct; and, although the trial court based its decree upon the ground of estoppel alone, it could also be sustained on the ground of laches.

Appeal from, Saline Circuit Court.—Hon. William T. Wood, Judge. I. The county of Saline could not become the purchaser of the land at the sale by the sheriff under the mortgage, and hence said sale was a mere nullity and the rights of the parties were not altered thereby. It was the same as if no sale had been made. Bay County v. Bently, 49 Mo. 236. II. There never having been a legal foreclosure of the mortgage, the sale by the county transferred to Van Meter the rights of the beneficiary, the county, and did not affect the plaintiff's equity of redemption. Johnson v. Houston, 47 Mo. 227. III. There was no estoppel in this case. The county "did have an interest in the land, and the offer to purchase the interest that she had as mortgagee is not inconsistent with the present application, or the claim now set up. But even if the plaintiffs had recognized the title asserted by the county, Van Meter testifies that he knew nothing ‘of it, and understood, when he bought, that Stevenson claimed the land. An important element of estoppel is wanting. There was not even a knowledge of the facts relied on as an estoppel, much less any acting upon them by Van Meter. Newman v. Hook, 37 Mo. 207 ; State ex rel., v. Laxes, 52 Mo. 396; Bales v. Perry, 51 Mo. 449 ; Bigelow on Estoppel, 560. 1. The plaintiffs demand is staLe and should not now be enforced. The sale was made in 1864, and he made no effort to redeem until 1868, and then not for himself. After obtaining an order as agent for his son, permitting him to buy on very favorable terms, and trying, from November, 1868 until April, 1869, to comply with its terms, he failed because he could not raise the money to make the cash payment. Erom 1860 to 1869 he had not paid a cent of interest. Ilis mortgages had been forfeited nine years, the land had been sold five year's, he was given every opportunity to redeem or sell, and failed to make any arrangements. Having exhausted all chances with the plaintiff, the county found a satisfactory purchaser in Yanmeter, and the land was sold to him. Plaintiff went to see Yanmeter about the sale, but whether the claim he set up was to redeem the mortgage or his wife’s dower, is a matter of conflict between them. And here intervenes another fatal delay. "Why did he not commence his proceedings at once to redeem? Yanmeter had only paid $500.00 on the purchase. Instead of acting promptly, he went away and paid no further attention to the matter until 1873. In the meantime Yaumeter had completed his purchase. Why this delay of four more years, making thirteen years he had permitted Ms mortgages to remain forfeited and his interest unpaid, during nine years of which this sale had remained unquestioned? We think the answer is apparent. He thought the sale was valid, and so treated it in his dealings with the county. After the sale to Yanmeter, he aban.doned all idea of getting anything out of the land. He says he did not care who got the land so he got the surplus money, and that was all he was figuring for in 1869. In 1872, Bay county v. Bently, was decided, and in the spring of 18*73 it had become generally known in the State. This suit followed right in its wake, as did many others, and this explains why there was so much energy after so much lethargy. Where are the circumstances “which will excuse the seeming laches, and palliate the apparent delay,” shown in this record ? Evans v. Snyder, 64 Mo. 516; Cox v. Montgomery, 36 111. 396; McNew v. Booth, 42 Mo. 189. The facts on the record show that plaintiff is estopped by • his own acts and dealings. Appellant’s counsel seek to avoid the force of the estoppel by the assumed fact that Vanmeter did not know of the acts constituting the estoppel. But this is a perversion of the facts shown on the record. They say Vanmeter swears he knew nothing of these acts; but he swears to nothing of the kind. He says, “ I cannot say that I knew of the record of the county court permitting J. W. Stevenson to purchase the lands. I had heard what the proceedings of the court was.” Again, “ I had heard of its being sold to young Stevenson.” Besides, many' of the acts involved in the estoppel were matters of public notoriety, as will be seen. Hence, the statement that Vanmeter was ignorant of the facts, is a great mistake. Even if this were the fact, the county is a party to the suit and has a large interest to protect; and it cannot be said that the county was ignorant of the facts. If he is estopped as to the county, Vanmeter is protected by it.