Wilber v. Robinson

Ellison, J.. From the agreed facts set forth in the [166] statement of this canse, it appears that defendant has not been gnilty of any fraud on plaintiff, but, on the contrary, his conduct has evidenced good faith throughout. It further appears that the land, though since of greater value, brought the best price obtainable at the sale. It also appears that defendant informed plaintiff, in May, 1876, that he had bid in the land, but would deed it to her if she so desired, she, of course, paying the expenses, costs, etc. She replied to this letter, but sent no money and onl/ complained of the attorney fee neither did she give any directions as to what defendant should do. Defendant again wrote her, in June, 1876, and though plaintiff received his letter she never answered him. In September, 1876, defendant again wrote plaintiff expressing surprise at her not making some arrangement about taking the land, and stating that he would now only wait a reasonable time, and if nothing was done he would keep the land himself. No answer was made to this, though plaintiff received it. Defendant heard nothing from plaintiff for near five years, when she wrote to him asking for the return of her “papers.” It appears that plaintiff, though fully informed of the condition of affairs and of the acts of her attorney, never elected to take the land. It is undoubtedly true that plaintiff could have elected to take the land, as it had been purchased by her attorney, as the result of legal proceedings prosecuted by her. It is also, doubtless, true that if he had sold the lands thus purchased, after she elected to take them, or without giving her an opportunity for election, she could hold him for the proceeds as she seeks to do in this action. But in order to entitle her to the property or its proceeds, she must elect to take it within a reasonable time. Ward v. Brown, 87 Mo. 468. That case fully covers the principles applicable to this, and we regard it as controlling, thus relieving us of the necessity of going into a detailed examination of the authorities bearing on the question. The judgment is affirmed. All concur.