source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    JAMES K. GILMORE v. M. C. THOMAS, Appellant.
    Division Two,
    July 9, 1913.
    1. DEED: Description: Mistake: Wrong Section. An executor’s deed which, through mistake, described land as in section 24 instead of section 23, did not pass the legal title to the land in section 23.
    2. EXECUTORS: Purchasing Estate Lands: Equity. An executor who, under a power in the will and under an order of the probate court, has sold lands of the estate, cannot come into equity and uphold a claim that the granjee in his executor’s deed took the legal title to hold for the executor. As executor he had no lawful right to purchase the lands of the estate directly or indirectly.
    3. EQUITY: Doctrine of Clean Hands: Invoked by Court on its Own Motion. The doctrine that he who comes into a court of equity must come with clean hands may be invoked by the Supreme Court on its own motion.
    4. EXECUTORS: Purchasing Estate Lands: Conduit to Pass Title: Not Aided in Equity. An executor attempted wrongfully to convey the legal title to estate lands to A to hold for himself, but made a mistake in the description so that the title did not pass. Afterward A conveyed the land in question to B and B. conveyed to the defendant. Held, that defendant stands in the shoes of A, who did not pay or agree to pay anything for the land and therefore had no equity in it. Moreover, as it is unlawful for an executor to purchase the estate land at his own sale, so it is unlawful for another to aid him in so doing by acting as a conduit to pass title, and having failed to get the title a court of equity will not aid him.
    Appeal from Greene Circuit Court. — Hon. George Pepper dine, Special Judge.
    Ambtemed.

      J. H. Mason and Frank B. Williams for -appellant.
    (1) In Ms report of sale the executor made affidavit that he did not directly or indirectly purchase said real estate, or any part thereof, or any interest therein, and that he was not interested in the property sold except as stated in said report. This oath cannot he overcome by loose statements, to the effect that the executor paid the purchase price and that the person to whom he sold paid nothing. Nor can they overcome the statement contained in the report and final settlement that the purchaser paid the purchase price in cash. The executor is estopped to impeach these records. Pearson v. Murray, 230 Mo. 162. The contemporaneous acts of the respondent and his sons show that they all regarded the land as having been deeded to appellant’s ancestor in title. This is evidence that it was intended to have been conveyed to him. (2) The plaintiff’s claim of title is without foundation. He was never in possession and has no rights as against the defendant who is in possession under claim of right and color of title, (a) The will having directed that the land be sold and the proceeds applied as personal effects, worked an equitable conversion as of the date of the testator’s demise. The land did not ■descend as real estate to tlie heirs, but passed as personal property to the executor for the benefit of certain legatees. The court therefore erred in holding that the respondent is entitled to an undivided interest in the land as tenant in common with the other heirs ■of James G-ilmore, deceased. Compton v. McMahan, 19 Mo. App. 494; Morris-v. Stephenson, 128 Mo. App. 338; Francisco v. Wingfield, 161 Mo. 542; Llewellyn v. Llewellyn, 122 Mo. App. 467. (b) The land was in the executor’s possession and under his control and he owed a duty in respect to it. He was trustee with power to sell, and therefore could not become purchaser at his own sale. If he was the real purchaser then the making of the deed to a third person was a badge of fraud. Miller v. Kelsay, 114 Mo. App. 598; Thornton v. Irwin, 43 Mo. 153; Hull v. Yoorhies, 45 Mo. 555; Darling v. Potts, 118 Mo. 506; 2 Woerner’s Admin. (2 Ed.), sec. 487; E. S. 1909, secs. 24, 170-171. {c) A party to a fraudulent conveyance may not allege its invalidity with a view to its avoidance. McLaughlin v. McLaughlin, 16 Mo. 250'; Hayes v. Pry, 110 Mo. App. 24; Larimore v. Tyler, 88 Mo. 661. (d) The respondent cannot establish title by virtue of the fact that he, as executor, was the real purchaser at the sale, or furnished the purchase money to the person to whom he sold it. He is estopped to contradict his report of sale, final settlement and deed. Pearson v. Murray, 230 Mo. 162. (e) If the executor did in fact purchase at his own sale then there was a secret trust and the pretended sale was fraudulent and the parties being in pari delicto, the law, in such cases, will leave them where it finds them — the defendant in possession. Mitchell v. Henley, 110 Mo. 598; Hamilton v. Schull, 25 Mo. 165; Pearson v. Murray, 230 Mo. 162; Shaw v. Shaw, 86 Mo. 594. There is no substantial evidence that the purchaser entered into the fraud, and it will not be presumed that he did so. Kilpatrick v. Wiley, 197 Mo. 123. (f) Where no better title than possession is shown, he who is prior in time is prior in right. “The possessor hath the right against all except him who hath the very right.” Dnncan v. Able, 99-Mo. 188; Hall v. G-allemore, 138 Mo. 638; Bains v. Bullock, 129 Mo. 117.

      J. P. McCammon for respondent.
    (1) The sale to S. E. Gilmore was not a bona-fide sale. Evans v.- Snyder, 64 Mo. 516; Greene v. Holt, 76 Mo. 677; Melton v. Pitch, 125 Mo. 281; Roberts v. Thomason, 174 Mo. 385. (2) The appellant’s title derived through a quitclaim deed from S. E. Gilmore to Ennis and another-quitclaim from Ennis to appellant was notice of equities. The quitclaim deed to defendant was notice to him of the equities of plaintiff. Zweigart v. Reed, 119 S. W. 960. “Besides he purchased by quitclaim .deed and the title he thereby acquired was subject to the equities of plaintiff.”- Con-dit v. Maxwell, 142 Mo. 278; Eoff v. Irvine, 108 Mo. 378; Hope v. Blair, 105 Mo. 85. (3) The only question before the court was as to who holds the better title, plaintiff or defendant. This is not a question between the plaintiff and the heirs or legatees of James Gilmore. This suit is between the plaintiff and the defendant alone, and whether either, by reason of the intestacy of James Gilmore as to this tract, or by reason of its purchase by plaintiff, indirectly and through Sterling E. Gilmore, and thereby its consequent vesting in equity in the heirs of James Gilmore the rights of the parties hereto are the only rights to be adjudicated here. Machine Works v. Bowers, 200 Mo. 219; Dixon v. Hunter, 204 Mo. 382; Graton v. Land & Lumber Co., 189 'Mo. 322; Gage v. Cantwell, 191 Mo. 698; Garrison v. Frazier, 165 Mo. 40; Ball v. Woolfolk, 175 Mo. 278; Charles v. White, 214 Mo. 187.
   ROY, C.

This is a proceeding to quiet the title to twenty acres, the west half of the southwest quarter of the northwest quarter of section 28, township 30, range 23, in aid of which an injunction was issued to prevent defendant from cutting timber from the land pending the suit.

The petition alleges that defendant took possession and enclosed the land in November, 1907, and claims to own some title, interest or estate in the land.

The answer alleged that James Gilmore, deceased, is the common source of title, and that he died in 1878, leaving a will which was probated, and that he intended by the will to provide that the land should be sold by his executor and the proceeds distributed among his heirs, but that by mistake the land was described in the will as being in range 24. That the plaintiff was named in the will as its executor. That the plaintiff, as such executor, under the power in the will contained, and under an order of the probate court, sold and conveyed the land to Sterling E. Gilmore, but that by mutual mistake the land was described, as in the will, as being in range 24. That the executor charged himself in his settlement of said estate with sixty dollars, the price for which the land sold, and distributed said proceeds among the distributees of the estate. That Sterling E. Gilmore, on March 31, 1903, by quitclaim deed conveyed the land to W. P. Ennis, who, on June 27, 1907, by quitclaim deed conveyed it to the defendant. The answer then alleged that defendant-is the owner in fee simple of the land and asks that the court determine the estate, title and interest of the parties and for a dissolution of the injunction.

The reply alleges that Sterling E. Gilmore did not pay anything for the land, but that plaintiff as such executor charged himself with the amount for which it sold, and paid it out to the distributees of the estate. That Sterling E. Gilmore at no time ■claimed to be the owner of the land, and at no time had or held possession of it, bnt, from the time of the sale nntil his death in 1905, a period of more than ten years, acquiesced in the plaintiff’s ownership of the land. The reply then alleges title in the plaintiff,by .adverse possession from 1894 to 1907.

The testator, James Gilmore, left three children, of whom plaintiff is one, and also left descendants of four other children.

The executor reported the sale of the land to Sterling E. Gilmore, stating that the purchaser had paid sixty dollars, the consideration, and the executor attached to the report his affidavit that he did not directly or indirectly purchase the land.

The executor’s deed was dated March 2, 1895, and was acknowledged March —, 1903, and the evidence for plaintiff tended to show that it was not delivered to Sterling E. Gilmore until after its acknowledgment.

The plaintiff at various times cut timber from the land and gave permission to other persons to get wood from it. It was not enclosed until the defendant enclosed it with a single wire in 1907.

Howard E. Gilmore, a son of the plaintiff, testified that he had talked several times with his brother Sterling about the land, and that Sterling stated that the ■deed was made to comply with the law, and that the plaintiff had furnished the money to pay for the land, and that he (Sterling) had not paid anything for the land. Two other sons of plaintiff testified and to some extent corroborated Howard’s evidence.

In 1903 the plaintiff was negotiating a sale of the land, and the mistake in the description was discovered. Sterling, who lived at Carthage, was s.ent for, and some effort was made to correct the title. Taxes had been allowed to accumulate against the land. The following letter was in evidence:

“Carthage, Missouri, 12-25-04.
Dear Father:
Pardon me for not writing sooner. Referring to that land matter I think I was out $26 for taxes and other expenses. If yon will repay me this amount, I will give you a quitclaim deed. Then you can bring suit to quiet the title which is a very simple matter as the time limit is now expired. I am writing mother about all there is of interest. I hope your health is good and you will enjoy this bright Christmas day. We will he glad to hear from you often.
“Respectfully, S. E. Gilmoke.”

The evidence for defendant tended to show that at one or more times Sterling Gilmore claimed to own the land, hut it did not show that he ever had possession of it, or exercised acts of ownership over it. From 1894 until 1903 the assessment books for some years showed that the owner was “unknown” and for other years during that time it was assessed to Francis Gilmore, a son of the plaintiff.

The trial court made the following finding of facts:

“I find that the plaintiff in this case is an heir of James Gilmore, deceased, and that the land in controversy never passed by the will of James Gilmore at all; that the land never came into possession of the •plaintiff in this case as executor of his will to pay debts.
“I find that as a matter of law that a will cannot be in any way amended. I find that the plaintiff in the case as an heir at law of James Gilmore, deceased, has a possessory right in the land in controversy as a tenant in common with the other heirs of the said Gilmore, deceased, and therefore has a right to possession of the land in common with them. As this is not a partition suit, I do not deem- it my duty to define the extent or quantity of his interests in the land.
“I find that the defendant is an entire stranger to the title, and took nothing by his deed from Ennis, .and that he, Ennis, took nothing by his deed from Sterling E. Gilmore and that Sterling E. Gilmore passed nothing by his deed in the way of title to James IC. Gilmore.
<£I further find with reference to the doctrine of ■estoppel, that the plaintiff is not estopped as against the defendant, and that estoppel has nothing whatever to do with the case. It would have to be raised by the other heirs of James Gilmore, deceased.
“At the request of the defendant, I further find .as a matter of fact, that M. C. Thomas at the time of the institution of this suit and filing of the petition, was in possession of the land in controversy under ■color of title, but without any right, whatever, and was virtually a trespasser; I find that the land was not' cultivated; I do not find that it was uncultivatable land, and my judgment will be for the plaintiff without defining his rights specifically, setting out his interest as being nothing more than that of a tenant in ■common with other heirs of James Gilmore, and I further adjudge that the injunction in the case be made perpetual,” and entered a decree accordingly.

We will not pass on the question as to whether the will of James Gilmore can be so construed or cor rected that it may be held to create a power in the executor to sell the land in controversy. It is conceded that the land was misdescribed in the will. It was also misde-scribed in the executor’s deed to Sterling E. Gilmore. Begardless of the mistake in the will, the executor’s •deed did not, to' say the least of it, convey the legal title to Sterling, for the simple reason that it did not describe the land, but instead described land six miles away. Whatever right either plaintiff or defendant may have under that deed is an equitable right and not a legal one. We will examine the claim of each lo an equitable interest in tbe land under the executor’s deed.

I. The plaintiff claims that he furnished the money, sixty dollars, to pay for the land; and that the deed was made to Sterling under an arrangement between them that Sterling was to convey it to. the plaintiff. In other words, the plaintiff asks that the conveyance to Sterling be upheld, but that Sterling’s grantees be .adjudged to hold the land in trust for the plaintiff. The trouble with the plaintiff is that, not having clean hands in that matter, he cannot get into a court of ■equity to have such a trust declared. He was executor of the will; and as such he had no lawful right to purchase the land of the estate directly or indirectly.

In Davoue v. Fanning, 2 John. Ch. 252, Chancellor Kent, in discussing the rule forbidding a trustee from purchasing the property of the estate said: ■“However innocent the purchaser may be in the given ■case it is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to judge, that the trustee has made a bargain advantageous to himself. The fact may be so, and yet the party not have it in his power distinctly and clearly to show it. . . . It is to guard against this uncer- . tainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the ■cestui que trust to come, at his own option, and without showing actual injury, and insist upon having the experiment of another sale.”

By section 32 of chapter 122 of the General Statutes of 1865 it was provided that an executor or administrator could not become the purchaser of land sold for the payment of debts for less than its appraised value. In the revision of 1879, section 166, it was provided that the executor or administrator should not directly or indirectly become the purchaser of land sold for the payment of debts. Thus, after experimenting with a different rule, our Legislature has deemed it wiser to revert to the old one.

In Pearson v. Murray, 230 Mo. 162, the right of one who had sold land as administratrix, and who sought to show that the purchaser had taken title under an agreement to hold it for such person, was denied. There is no difference in principle between a sale under a power in the will and a sale under the order of the probate court. In case of sale to pay debts made under the order of the court, the executor is required to make affidavit that he did not become the purchaser. Where a sale is made under a power in the will no such affidavit, is required. Yet the moral and legal obligation resting upon the executor not to become such purchaser is the same in both cases.

The doctrine that he 'who comes into a court of equity must come with clean hands may be invoked by this court on its own motion. [Creamer v. Bivert, 214 Mo. 1. c. 485.] We, therefore, de-eline to enforce any equity plaintiff may claim to hold under the sale to Sterling E. Gilmore.

II. Defendant has no claim which this court will enforce. He stands exactly in the shoes of Sterling E. Gilmore, who did not pay or agree to pay. anything for the land, as we find the fact to be, and therefore had no equity in the land.

It was held in Pearson v. Murray, supra, that where a person as administratrix conveyed land to another, and made affidavit that she did not directly or indirectly become the purchaser, she could not impeach the deed or affidavit by showing that she was the real purchaser and had paid the purchase money. The rule laid down in that case is a sound one. Such is not the case here. The. purchaser at the sale in this case did not get the title, and the defendant, claiming under the purchaser, is here ashing for equitable relief.

He cannot get relief for two reasons. He has no equitable right, and he is subject to the same rule which we have applied to the plaintiff. As it is unlawful for an executor to purchase the estate land at his own sale, so it is unlawful for another to aid him In so doing by acting as a conduit to pass the title. Having failed to get the title, this court will not assist him in doing so. It will leave the parties just where it finds them. The rule is laid down in 16 Cyc. 146, as follows: “In the same manner, under a great variety of circumstances, equity has refused to aid either party, where both are participants in a transaction in fraud of a third person, either to carry out their arrangement, to set it aside, or to relieve in any way in reference to it.”

Such being the case, we must, hold that the rights of the parties are just as they would have been if no sale by the executor had ever been made. That leaves the defendant without any right or title, legal or equitable, and leaves the ownership of the land in the devisees or heirs of James Gilmore.

We agree with the trial court on all the other facts found by it, and we affirm the judgment.

Williams, C., concurs.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: WOODSON, P. J.

text:
    OSCAR LONG et al. v. GREENE COUNTY ABSTRACT & LOAN COMPANY et al., Appellants.
    Division One,
    July 10, 1913.
    1. USURY: Injunction: Remedy at Law: Reforming Contract. The purpose of Sec. 7182, R. S. 1909, was to fully protect the debtor against usurious contracts, by authorizing him to recover by suit from the creditor all sums of money paid by him over and above the legal or contract rate of interest. Under it he can sue for the excess as often as interest is paid, or he can let the usurious contract stand in full force until fully executed, and then recover all excessive interest paid. But if he does not avail himself of the statute he has the equitable right to have the contract annulled and canceled, but he cannot have it reformed. He cannot have an injunction to restrain the selling of the property covered by a deed of trust given to secure the usurious note until that note is reformed, since he has an adequate remedy at law.
    2. USURIOUS CONTRACT: Reformation: Fraud. Fraud is no ground for the reformation of a contract; it is only a ground for its cancellation. An allegation in the petition charging that the usurious note was the result of imposition practiced on the makers by the payee, as a result of his superior intelligence and their ignorance, and its hidden and complicated provisions, and charging no mutual mistake, will not authorize the reformation of the note.
    3. -: Cancellation: Status Quo: Tender of Amount Due. A usurious note cannot be cancelled unless plaintiff tenders back the money he received on the same, thereby offering to place defendant in statu quo.

    Appeal from Greene Circuit Court. — Hon. Alfred Page, Judge.
    REVERSED.

      W. B. Self and T. J. Murray for appellants.
    Equity will not entertain jurisdiction where there is an adequate remedy at law. Thias v. Siener, 103 Mo. 314; Davidson v. Dockery, 179 Mo. 687. The plaintiffs had an adequate remedy at law. The defendants are admitted to be solvent. The laws give them an adequate remedy. Laws 1905, p. 173, sec. 3708. He-who seeks equity must do equity. Rnppel v. Savings. Association, 158 Mo. 622. Unless a judgment is responsive to the issues set up in pleadings it is erroneous, and motion in arrest of such judgment should he sustained. Schneider v. Patton, 175 Mo. 684; Jackard v. Anderson, 32 Mo. 188. One seeking to rescind a contract must as a condition precedent restore-of offer to restore what he got by the contract, or refund its value. Culbertson v. Young, 86 Mo. App. 277; Robinson v. Siple, 129 Mo. 220; Rnppel v. Savings Association, 158 Mo. 621. The plaintiffs must, tender into court the amount admitted to be due before an injunction will he granted to prevent the sale-under deed of trust. Ferguson v. Soden, 111 Mo. 208; Price v. Empire Loan Association,-75 Mo. App. 556. A court.of equity cannot reform an instrument unless there is a mutual mistake made in drafting the-contract. Plaintiffs do not claim that there was a mutual mistake in making the contract. Therefore" it cannot be reformed. It must be enforced as made or declared void. The decree attempted to make a new contract between plaintiffs and defendants. If an agreement is what the parties thereto intended it should be, equity will not interfere because they did not understand its legal effects. Corrivan v. Tillney, 100 Mo. 276; Henderson v. Dickey, 35 Mo. 120.

      Henry G. Young for respondents.
    (1) The second deed of trust was null and void because given for a wholly fictitious indebtedness, and it therefore constituted a cloud upon the plaintiffs’ title which the court had a right to remove. The decree in that behalf is manifestly correct. (2) The equitable jurisdiction of the court was correctly invoked, if for no other reasons, upon the ground that the removal of clouds from titles and the correction • of fraud are among the most ancient subjects of equity jurisdiction. Superadded to this we have a case of mistake on the part of plaintiffs which was induced by the conduct of defendants. Smith v. Patterson, 58 Mo. App. 73; Janney v. Spedden, 38 Mo. 395; Harper v. Rosenberger, 56 Mo. App. 388; Pratt v. Clark, 57 Mo. 189; Dingle v. Pollock, 49 Mo. App. 479; Paris v. Plaley, 61 Mo. 453; Stewart v. Caldwell, 54 Mo. 536; Bank v. Chambers, 96 Mo. 459; Dingle v. Pollock, 49 Mo. App. 479; Leeper v. Eylor, 111 Mo. 312; Swathen y. Swathen, 104 Mo. 201; Gardner v. Ercy, 99 Mo. 523; Verdin v. St. Louis, 131 Mo. 26; State ex rel. v. Phillips, 97 Mo. 331; Chrisman y. Linderman, 202 Mo. 613. (a) The deed of trust to secure a fictitious debt of $50 is certainly a cloud upon title; and the excess interest amounting to usury in the $612 note is certainly pro tanto, to the extent of such interest, also a cloud thereon, (b) The conduct of .the chief managing officer of the defendant abstract company was of such a fraudulent character as to justify the interposition of a court of equity in behalf of respondents. Smith v. Patterson, 53 Mo. App. 66. - (3) A court of equity has power to purge a contract of its usurious interest. Lewis y. Loan Assn., 183 Mo. 351; McDon-nel v. Loan Assn., 175 Mo. 270; Ruppel v. Savings Assn., 158 Mo. 613; Storage Co. v.' Glassner, 169 Mo. 38; Vandergriff v. Swinney, 158 Mo. 527. (4) Plaintiffs, by their hill, offer to do full equity. This is sufficient to give them standing in a court of equity. Ruppel v. Association, 158 Mo. 613; Kline v. Vogel, 90 Mo. 239. (5) Plaintiffs are entitled to have their contract reformed according to the true intent of the parties. And if by reason of fraud, mistake or accident, the contract fails to express that intent, equity will intervene and compel the doing of that which should have been done in the first instance. Bruer v. Pritchett, 163 Mo. 560; Blair v. Railroad, 89 Mo.' 383; Miller v. Railroad, 162 Mo. -424.
   WOODSON, P. J.

This was a suit instituted in the circuit court of Greene county by the plaintiffs, having for its' object the injunction of defendant from selling two certain lots of ground situate in Block H in Eagle Heights Place, Springfield, Missouri.

A demurrer was filed to the bill by defendants, which was by the court overruled; and they, declining to plead further, judgment was rendered in favor of plaintiffs, enjoining the sale of the' lots and reforming the contract, eliminating therefrom all usurious interest from the evidence of the debt and se-ourities of the loan, purging the first note and deed of trust of all usury, and cancelling the second note and deed of trust because they were wholly based upon usury, otherwise leaving the loan and the securities thereof in full force and effect, except the monthly payments provided for in the deed of trust were to begin with and date from the rendition of the judgment, and not from the date of the notes and deeds of trust.

Prom this judgment of reformation and cancellation the defendants in due time and in proper form appealed the cause to this court.

This state of the record calls for a careful consideration of the bill or petition filed in the trial court, and upon which the judgment was predicated; and before we can do that intelligently the bill will have to be set out, which, omitting formal parts is as follows :

“Comes now the plaintiffs in the above entitled cause, and state that the defendant, the Greene County Abstract and Loan Company is a corporation duly organized and acting as such under the laws of the State of Missouri, and that the defendant W. E. Freeman is the duly qualified and acting sheriff of Greene county, Missouri. Plaintiffs further state that on or about the 17th day of January, 1908, they borrowed of and from the Greene County Abstract & Loan Company of Springfield, Missouri, the snm of $400, and no other or further snm, and agreed to secure the same by' deed of trust upon the following described lots and parcels of land situated in the county of Greene and the State of Missouri, to-wit: Lots two and three in Block H in Eagle Heights Place, an addition to the city of Springfield, Missouri. That at the time of securing said loan and making said agreement for the execution of the deed of trust upon the real estate hereinbefore described, the defendant the Greene County Abstract & Loan Company caused and procured the plaintiffs to make and execute a deed of trust upon said premises, which was so drafted and prepared as to demand and require of the plaintiffs a sum of money, in payment of said loan of $400, which was largely in excess of said amount and extortionate and usurious in this: That said deed of trust called for and required payment of a certain installment note, bearing date of January 17, 1908,. amounting in the aggregate to $612, payable in seventy-two monthly installments of $8.50 each, beginning on the first day of March, 1908, and payable on the first day of each and every succeeding month thereafter, for a period of seventy-one months, until the whole of said sum of $612 should be paid off and discharged, and that it was expressly provided by the terms of said installment note that each and every one of said installments should, unless paid at maturity ■thereof, bear interest at the- rate of eight per cent per annum. Plaintiffs further state that at the time when the deed of trust last hereinbefore referred to was executed, the defendant the Greene County Abstract & Loan Company causd and required plaintiffs,, without any consideration whatsoever therefor, to execute an additional deed of trust bearing date on the-;17th day of January, 1908, and recorded in Book 209,. page 434, in the Recorder of Deeds’ office of Greeno county, Missouri, for tire purpose of securing a pretended but wholly fictitious indebtedness of fifty dollars, evidenced by the promissory note of the plaintiffs for that amount, due in sis years after date and bearing interest at the rate of eight per cent per an-num after the maturity thereof. Plaintiffs further state that either of the defendants, the Greene County Abstract & Loan Company, or the defendant T. J. Murray, is the holder and pretended owner of said notes for the sum of $612 and fifty dollars, respectively, and they are ignorant as to which of said two defendants is the pretended owner and holder of same, but they allege the fact to be that one or the other of said two defendants is such pretended owner and holder.
“Plaintiffs further state that the defendant W. E. Freeman is as aforesaid the acting sheriff of Greene county, Missouri, and claims to be acting trustee under the terms and provisions of the last deed of trust hereinbefore described given as aforesaid to secure the payments of the said note for fifty dollars. That under and by virtue of provisions mentioned and described of said last deed of trust it is provided that if default be made in the payment of the principal or the interest or any part thereof of the note or notes secured by the first deed of trust hereinbefore described for the sum of $612, and if such defaulted payments are made by the beneficiary of said second deed of trust, the indebtedness secured by said second deed of trust should at the election of holder of said note or notes immediately become due and payable, and the trustee named in the said deed of trust hereinbefore mentioned should proceed to sell the land therein described upon the same terms and conditions as if default had been made in the payment of the indebtedness secured by said second deed of trust.
“Plaintiffs further state that under the claim and pretense that default has been made in the ’ payment. of certain of the installments past due and secured by the first deed of trust hereinbefore mentioned, and that tbe same have been paid by the beneficiary in said second deed of trust, and that the original trustee in both of said deeds of trust has refused to act in the foreclosure of the same, the beneficiary in said last mentioned deed of trust has caused and procured the defendant W. E. Freeman to assume the duties of acting trustee under the terms of said- second deed of trust, and that said W. E. Freeman has advertised said property hereinbefore described for sale in pursuance of the terms and provisions of said deed of trust, and that he threatens and intends to sell the same at public vendue at the court house door' in the city of Springfield, Missouri, on the 25th day of March, 1909. •
“Plaintiffs further state that at the time of the execution of the said two deeds of trust they were and are now ignorant, illiterate and unaccustomed to business and business transactions involving the title of land and the execution of instruments of writing affecting the same, and that the defendant T. J. Murray was at the time of the execution of said deed of trust and is now the chief managing officer of the defendant the Greene County Abstract & Loan Company, and that said Murray is an attorney at law and well versed in the ways of business and business transactions pertaining to land titles. That the plaintiffs at the time of the execution of said deed of trust which obligated them to pay usurious interest upon the money borrowed as aforesaid by them, they thought and were caused to believe by the said Murray at the time that said notes were simply evidence of indebtedness for the sum of $400 with interest thereon at the rate of eight per cent per annum, payable in monthly installments of such payments as would amount in the aggregate at the end of seventy-two months to the sum of $400 with interest thereon at the rate of eight per cent per annum, and that the defendant Murray well knew that said notes which were executed as aforesaid represented and provided for the collection of a usurious and illegal sum of money.
“Plaintiffs further state that on or about the — day of -, 1908, they procured a purchaser for their said property hereinbefore described and he was willing, able and ready to pay to them the sum of $600 for the said property, and that plaintiffs a thought that there would still be due and owing from them by said purchaser, after the discharge of their loan secured as aforesaid from the defendant, the Greene County Abstract & Loan Company, considerable sum of money, amounting to about $200, and that they called upon the defendant Murray, and offered to take up said loan with a part of said purchase money to be derived from said sale, but that said defendant Murray refused to receive the same, but demanded payment in full of the said sum of $612.
“Plaintiffs further state that they have paid upon said loan the sum of thirty-four dollars in four monthly installments, and that they have erected upon said real estate valuable and lasting improvements, all of which will be lost to them unless they are granted the relief herein sought.
“Plaintiffs further state that they are without means and have no money to tender and pay into court in discharge of said deed of trust, but that they are willing and now offer to do equity in full to the end that they may be secured in the rights to which they are justly and legally entitled in the premises and to the end that the defendants may be secured upon said real estate for the amount of money actually loaned to plaintiffs, with lawful interest thereon at the rate of six per cent per annum.
“Wherefore by reason of the premises the plaintiffs pray that said second deed of trust to secure the payment of said fifty dollar note be cancelled, set aside and for naught held and esteemed, and that said fifty dollar note be cancelled and annulled, and that the défendant Freeman be enjoined and restrained from selling’ said real estate in compliance with the notice of sale hereinbefore referred to, which sale is advertised for the 25th day of March, 1909, and from selling or attempting to sell the same at any other time until the rights of the parties hereto have been •respectively adjusted and determined, and that the defendant the Greene County Abstract & Loan Company and the said T. J. Murray be restrained from procuring or causing to be procured any sale under the terms and provisions of either of the said deeds of trust hereinbefore mentioned until the rights of the parties hereunto shall have been respectively as-cértained and determined, and that said deeds of trust and said notes be reformed so that all provisions or agreements for the payment of usurious interest shall be eliminated therefrom, and that the cloud upon their title created by the said usurious interest charge be removed, and for such other and further relief as to the court may seem just and proper, and that the plaintiff have and recover his cost and a reasonable attorney’s fee herein.”

Then follows the judgment, the substance of which has been previously stated, which, in extension, covers some six or seven pages of closely printed matter.

I. Counsel for appellants insist first, that the judgment of the circuit court is erroneous for the reason that equity will not entertain jurisdiction of a cause where there is a full and adequate remedy at law.

It is admitted, or at least not denied, and the evidence tends to show, that the defendants are solvent and are capable of paying all just claims that existed or may be established against them.

Conceding, as we must, under the demurrer, that the loan in question bore usurious interest, yet under section 3708, Revised Statutes 1899, now section 7182, Revised Statutes 1909, the plaintiffs had an adequate remedy at law. That section, which embodies this and similar actions, provides that:

“No person shall directly or indirectly take, for the use or loan of money or other commodity, above the rates of interest specified in the three preceding sections, for the forbearance or use of one hundred ■dollars, or the value thereof, for one year, and so after those rates for a greater or less sum, or for a longer nr shorter time, or according to those rates or proportions, for the loan of any money or other commodity. Any person who shall violate the foregoing prohibition of this section shall be subject to be sued, for any and all sums of money paid in excess of the principal and legal rate of interest of any loan, by the borrower, or in ease of borrower’s death, by the administrator or executor of his estate, and shall be adjudged to pay the costs of suit, including a reasonable attorney’s fee to be determined by the court.”

The very purpose of this statute was to fully protect the debtor against usurious contracts, by authorizing him to recover by suit from the creditor all sums of money paid to him over and above the legal or contractual rate of interest, which could not have been done prior to its enactment.

With the assistance of this statute, the debtor is enabled to sue, from time to time, or to let the usurious contract stand or remain in full force and effect until fully executed, and then sue for and recover all sums paid by him over and above the legal or contractual rate of interest authorized by said statutes, but if he did not avail of this statute, then he had the equitable right to have the contract annulled, set aside and cancelled, but not reformed for that reason, as will be presently shown.

We are, therefore, of the opinion,, that if the plaintiffs wished to abide by the contract, excepting as to the nsnrions rates of interest, they shonld have paid the installments of the nsnrions interest, and after the payment of each, sned for the recovery of the same, or awaited the maturity of the obligations,, and then have proceeded under the provisions of said section 7182, Revised Statutes 1909, for the recovery of the whole amount, in which event resort to a court of equity would not have been necessary for a full and complete restitution of the rights of the plaintiffs.

We, therefore, hold that plaintiffs had an adequate remedy at law for the redress of the wrongs, complained of; that is, if plaintiffs wished to abide by the legal parts of the contract mentioned.

We are, therefore, of the opinion that the bill for this reason should have been dismissed.

II. It is next insisted by counsel for defendants, that if plaintiffs did not wish to abide by the contract, which was voidable because of the usurious portions thereof, then they should have brought a bill for a rescission and cancellation of the contract and not for a reformation of the same.

In our opinion, this insistence is self-evidently sound, especially in the light of the axiomatic doctrine that a court of equity will construe and ref°rm a contract so as to express the real intention of the parties thereto, or annul and cancel the same, where it is illegal and void for any reason; yet it will not make a contract for the parties thereto or reform the same, except for the purpose of expressing the real intention of the parties.

In the case at bar, there is no allegation in the bill or pretense made in the brief of counsel for plaintiffs that the contract of loan, the notes and deed of trust, which are asked to be reformed, hiddenly providing for the payment of usurious interest, was the result of a mutual mistake of the parties thereto; hut upon the contrary, it is expressly charged in the bill that said hidden provision was inserted therein by defendants, under and by virtue of a fraudulent imposition perpetrated upon the plaintiffs by reason of the intelligence, learning and fraudulent designs of the individual defendants and of the agents of the corporate defendant, and through the ignorance and illiteracy of the plaintiffs.

This alone conclusively shows that there is no equity whatever in the hill and that the decree reforming the first note and deed of trust and cancelling the second was erroneous. But independent of that, through some process of reasoning, not made clear to my mind, counsel for, plaintiff insist that because «of the fraud of defendants the court properly reformed the first note and deed of trust and correctly can-celled the second.

In the first place, fraud is not a ground for reforming a deed of trust, or any other contract for that matter, that I ever heard of. Fraud is a well-known ground for the cancellation of a contract, but not for its reformation.

But if the trial court proceeded upon the theory -of cancellation, which it evidently did as to the second note and deed of trust, then the decree is erroneous for the reason that plaintiffs did not tender hack the money they received on the notes, and thereby place the defendants in statu quo. This was an absolute bar to plaintiffs’ right to a recovery in this case. In the case of Eohinson v. Siple, 129 Mo. 208, 1. c. 220, this court in discussing this question said:

“An insurmountable barrier to the defense, admitting every other allegation in their answer to he true, is the failure of defendants to return to plaintiff, and their inability to do so, the horses which they claim to have purchased from him. The rule is, that a party desiring to rescind a contract must tender back whatever of value be has received, and place tbe other contracting party in stain quo; otherwise the contract will not he rescinded. This is in accord with the soundest rules of equity and justice, and is of universal application, unless the other party, by some act or omission of his, has rendered it impossible for the party desiring to rescind to return the property received by him. [Masson v. Bovet, 1 Denio, 69; Hammond v. Pennock, 61 N. Y. 145.]
“In the case in hand, defendants Siple, Siple and Beanblossom, were unable to rescind and return the property without the concurrence of their codefend-ant, W. H. Robinson, who not only refused to rescind the contract, but had taken and disposed of a, number of the horses, so that it was impossible that plaintiff could have been placed in statu quo.
“In Melton v. Smith, 65 Mo. 315, Sherwood, J., in speaking-for the court, said: ‘Smith was in no condition to exercise the right of rescission, even had ho elected promptly so to do, and for the obvious reason aforesaid, that holding only an undivided three-fourths in the property contracted to be conveyed, it was out of his power, to have restored Atkinson to his status quo, an absolute condition precedent to the exercise of the right of rescission, whether exercised with or without the intervention of the courts.’ [See, also, Estes v. Reynolds, 75 Mo. 563.].”

And in the case of Ruppel v. Missouri Guarantee, Savings and Building Association, 158 Mo. 613, 1. c. 621, this court, in speaking through ValliaNt, J., said:

“But the court after finding that there was $1100 due the defendant on the plaintiffs’ own theory, and-showing, decreed that the defendant’s security bo cancelled without requiring the plaintiffs to pay what they acknowledged they owed,- and what they offered in their bill to pay. That is contrary to the course of equity jurisprudence. When the plaintiffs seek the aid of a court of equity to relieve them of what they consider an usurious contract, the court will give them relief only on terms of equity and fair dealing. To allow the plaintiffs to retain what they justly owe and compel defendant to cancel its mortgage, is a transaction that cannot he commended in the forum of good conscience. The mere fact that defendant refused what the plaintiff offered to pay is no excuse .for plaintiffs to keep what does not belong to them. Even a conrt of law would not tolerate that act; in law a tender to he available must he kept good. [Berthold v. Reyburn, 37 Mo. 587; Railroad v. Clark, 119 Mo. 357, 1. c. 372; Voss v. McGuire, 26 Mo. App. 452.] The fact that a debtor has once tendered the amount due and it has been refused, may, if it is kept good, stop the running of interest, but it will not extinguish the debt, and if it has not been kept good it will not even stop the running of interest. But even at law the plaintiffs’ offer in this instance did not amount to a tender, because it was not unconditional. It was an offer to pay so much on condition that defendant would receive it in full satisfaction of its demand, while the defendant was claiming that a large sum was owing. [Henderson v. Cass County, 107 Mo. 50.] The fact that Euppel while on the witness stand said that he was willing to pay the defendant whatever the court should find to be due, could have no legitimate effect on the finding and decree; the case should be adjudged according to the rights of the parties when the suit was filed.
“Courts of equity deal with the subject of tender on the broad principles of.justice. "When a plaintiff comes into court asking equitable relief, if the relief is' granted it will be upon such terms as are just and equitable. Generally the plaintiff is required to signify in his hill a disposition to do what is right, hut whether he so signify or not the court will require him to do so as a condition, of relief granted. In Landis v. Saxton, 89 Mo. 375, 1. c. 383, this court, per Black, J, said: ‘Authorities cited do say that where a tender has been made of the amount due, its discharges the lien, still, without regard to the statute, a court of equity would not decree affirmative relief, such as the release or satisfaction of a mortgage or deed of trust or other lien, without payment of the amount due at the date of the tender. . . . Until plaintiff does make such payment he cannot have the deed of trust satisfied as prayed for in his petition.’ In Kline v. Vogel, 90 Mo. 239, 1. c. 245, per Sherwood, J., it is said: ‘So, also, if a borrower of money on usurious interest seeks the cancellation of the instrument which evidences the debt equity refuses its aid unless upon the condition that payment be made the lender of what is bona-fide due him.’ In Hudson v. Glencoe, 140 Mo. 103, 1. c. 118, this court, per Mac-karlaNE, J., said: ‘Our opinion is that a tender of the amount due on a mortgage debt, made after default, should not on principle discharge the mortgage, and should have no greater effect on the security than it has on the debt itself.’ ”

So in the case at bar, the hill concedes and states that the plaintiffs owe the defendants $400, yet at their request the trial court reformed the first note and deed of trust, and cancelled the second note and deed of trust, and that too, without any tender of the amount conceded to he due the defendants on said notes.

While it is true the plaintiffs stated that they were ready and willing to do equity in the premises, hut in fact they never did'so; and moreover, the trial court rendered the decree mentioned without requiring the plaintiffs to pay one cent of the sum due ón the notes. But counsel for plaintiffs try to justify that action of the court, and uphold the decree by saying that there was nothing whatever due on the second note, and the court reformed the first, so as to secure the exact amount due thereon.

Counsel, however, seem to overlook the fact that the two notes and two deeds of trust constitute hut a single transaction, and the mere fact that two notes and two deeds of trust, instead of one, were executed in pursuance to the usurious contracts makes no difference whatever, in so far as the legal question involved is concerned; and as to that part of the decree reforming the first note and deed of trust, it is sufficient to say it cannot stand because the petition does not state facts authorizing a reformation, nor was there any evidence introduced showing the plaintiffs were entitled to the same.

So viewing this decree from whatever standpoint you may, there is no legal principle upon which it can he supported.

We, therefore, reverse the judgment and dismiss the hill.

All concur, except Bond, J., who. dissents.