Judge v. Booge

• Decision Date: 31 March 1871
• Citation: 47 Mo. 544
• Parties: JAMES JUDGE, Respondent, v. HARRIS D. BOOGE, Appellant.
• Court: Missouri Supreme Court

47 Mo. 544

JAMES JUDGE, Respondent,

v.HARRIS D. BOOGE, Appellant.

Supreme Court of Missouri.

March Term, 1871.

Appeal from Sixth District Court.

Krum & Decker, with whom were M. L. Gray and E. A. Lewis, for appellant.

I. The decree in this case is erroneous because it does not recite or state the facts on which it is founded or which the court below considered as proved. This is error for which a bill of review would lie. A decree in chancery, without finding the facts that warrant it, is erroneous. (1 Root, 273.) A decree in chancery must find the facts directly and positively. ( Id. 466, 521; 2 Ch. Cas. 161; 2 Mad. Ch. 453; 1 Harrison's Ch. Prec. 108; 10 Yerg. 41.) A decree must be not only secundum probata, but also secundum allegata. (5 Mason, 113.) A decree must be sustained by the allegations of the parties as well as by the proofs in the cause, and can not be founded on a fact not put in issue by the pleadings. (10 Wheat. 181; Gregory & Huston v. Powers et al., 3 Litt. 339.)

II. If it is assumed that the plaintiff is in a position to ask to have the trustee's sale set aside, he has failed to show in evidence any facts which affect the validity of the sale in question. That the conveyance of the land in question, by the two deeds of trust, to the trustee, with power to sell for the satisfaction of the debt, etc., is valid, can not be denied. Such conveyances were at all times valid by the English common law. (Powell on Mortg. 13; 2 Sto. Eq., § 1009-24; 4 Kent, 146; 4 How. 553.) A sale under a power is equivalent to a foreclosure in chancery. (10 Johns. 185; 2 Cow. 195; 4 Paige, 526.)

H. C. Lackland, with whom was F. F. McDearmon, for respondent.

I. Connect the inadequacy of consideration with the intermeddling of Booge and Chittenden with the duties of the trustee, with the irregularities of the sale, the two sales on the same day at different times, the false representation of Chittenden to Flournoy, the imprisonment of Judge, and with the other facts too numerous to mention here, and the case shows one of the grossest frauds ever perpetrated. Wherever the least fraud or unfairness appears, the court will always unhesitatingly give relief. The decisions are without number. (Clarkson v. Creeley, 40 Mo. 114; Barnard v. Duncan, 38 Mo. 170; Powers v. Kueekhoff, 41 Mo. 430-1; Rutherford v. Williams, 42 Mo. 19; McNew v. Booth, 42 Mo. 189, 192; Goode v. Comfort, 39 Mo. 327-8; 1 White & Tud. Eq. Cas. 188-9, 206-7, 218-19; Hill on Trust. 522-3, 526, 772; Thornton v. Irwin, 43 Mo. 153; 42 Mo. 551; 35 Mo. 95; 37 Mo. 204; 39 Mo. 71; id. 313; 7 Mo. 346; 3 Mo. 413; 22 Mo. 333; 20 Mo. 290; 25 Mo. 309; 23 Mo. 13; 36 Mo. 514; 20 Mo. 294; 11 Mo. 74; 10 Mo. 75; Grumley v. Webb, 44 Mo. 444; Dover v. Kennerly, 38 Mo. 469.)

II. Counsel for defendant argued in the District Court that the decree is defective because it does not find the facts. We deny that it is necessary to find the facts. There is no defect in the decree in this respect. Under the practice act of 1849 it was necessary to find the facts in the decree. (Sess. Acts 1849, p. 90, § 2.) The judgment was the legal conclusion of the facts set out in the finding, and hence the finding had to contain all the facts necessary to sustain the judgment, and in law cases the appellate court had no power to find the facts. Hence, under the practice act of 1849, the judgment had always to contain a finding of the facts necessary to sustain it, otherwise it was reversed. But this was found extremely inconvenient in practice. Since the practice act of 1855, it is not necessary to set out the facts in the body of the judgment. (27 Mo. 161, 227, 230.) The only question is, does the judgment fairly determine the rights of the parties? Is the judgment a just conclusion upon the whole record and evidence in the case? The form is nothing, the conclusion is everything. The same practice in this respect as applicable to both law and equity cases. (State ex rel. Allen v. St. Louis Circuit Court, 41 Mo. 574, 579 et seq.) What is the use of setting out a long string of findings in an equity case, when the appellate court may find some of the facts differently from the lower court, and yet affirm the judgment for a different reason? But if this is a defect, being a merely formal one, it is no ground for reversal, and can be corrected in this court. (Gen. Stat. 1865, p. 548, § 40, p. 670, § 5, p. 671, §§ 19, 20; Sess. Acts 1867, p. 134.) But we insist that the decree does find all the facts, and that, too, in a very clear and explicit manner. It finds the issues upon the pleadings, which are as much a part of the record as the judgment itself. (Gen. Stat. 1865, ch. 169, §§ 1-4.)

WAGNER, Judge, delivered the opinion of the court.

It is insisted by the counsel for the appellant that the decree in this case is erroneous because it does not recite or state the facts on which it is founded or which the court below considered as proved. But under our present code it is not required that the facts upon which the decree is based should be specifically found. Under the practice act of 1849 it was necessary to find the facts. The judgment was the legal conclusion of the facts set out in the finding, and therefore the finding had to contain all the facts necessary to sustain the judgment. But the law, as enacted in 1855, has changed the rule and made it otherwise. (Kurlbaum v. Roepke, 27 Mo. 161; Martin v. Martin, id. 227; Brosius v. McGaugh, id. 230.) In equity the case is now preserved in the same manner as in an action at law. All the material evidence must be incorporated in the bill of exceptions, for the case is heard in the appellate court upon the pleadings and the evidence, and the whole case will be passed upon in the court of last resort and decided accordingly. (State ex rel. Allen v. St. Louis Circuit Court, 41 Mo. 574.)

It is unnecessary to examine the charge made in the bill as to the combination entered into between Booge, the appellant, and Chittenden and Copelin for the purpose of cheating and defrauding Judge, as the allegation was not sufficiently sustained by the proofs, and it becomes unimportant in view of the subsequent shape given to the case. That Booge purchased the notes and caused the land to be sold with the express purpose of speculating and gaining an unconscionable advantage over Judge, is too clear and transparent to be doubted for a moment. Judge had made his two promissory notes for $5,000 each, secured by deed of trust on upward of 2,000 acres of very valuable land in St. Charles county. The notes had just matured. They bore no interest, and yet Booge buys them for their full face, and commences proceedings to foreclose the deed of trust at once. His attorney wrote out the advertisement and had it published in a paper without taking time to consult the trustee, and afterward showed it to the trustee and got him to approve and ratify the action taken.

Previous to this time Judge had been arrested by the military authorities of the United States and kept confined in a military prison till long after his property was sold and sacrificed. No effort was made to notify either him or his agent, but he was kept in profound darkness. It is true that Booge had the right to buy the notes, and he had also the right to pursue his remedy and enforce the collection; and if everything was conducted fairly and in pursuance of law, he is entitled to be protected, notwithstanding his motives. For the purpose of deciding this case I shall leave out of view the mass of matter relating to fraud in the transaction, as it may be satisfactorily disposed of without entering into that examination.

When the property was set up for sale it sold in mass without any division, and was struck off to Booge for $4,000, a sum conclusively shown by the evidence not to be one-twelfth part of its actual value. The bidders then separated and dispersed, and when the trustee proceeded to make out the deed he discovered that the provision in the trust deed had been violated in the sale-- that the deed required that the land should be sold in parcels. When the attention of Booge and his attorney was directed to this they refused to complete the purchase, and the trustee then, on the same day, without giving any new notice, re-sold the property. This second sale took place within the hours specified in the advertisement, but no person was present at it except the parties immediately interested. Booge again became the purchaser at the same price; there was no competition in the bidding. Although the price paid was grossly inadequate, yet this consideration, unattended with other circumstances, would not be sufficient of itself to authorize a court to set...