Baier v. Berberich

• Decision Date: 30 April 1883
• Citation: 77 Mo. 413
• Parties: BAIER v. BERBERICH et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 413

BAIER

v.BERBERICH et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

J. M. & C. H. Krum for appellants.Kehr & Tittman for respondents, cited Smith v. Bryan, 34 Ga. 61; Umbarger v. Watts, 25 Gratt. 167; Hancock v. R. R. Co., 3 Gratt. 328; Hutchinson v. Kellam, 3 Munf. 202; Skipwith v. Young, 5 Munf. 276; Hatch v. Allen, 27 Mo. 85.

MARTIN, C.

This was a suit in equity commenced in the circuit court of St. Louis on the 17th day of August, 1878. The bill in substance charges that on and prior to the 22nd day of May, 1877, John T. Baier was the owner of two adjoining lots and the building thereon in the city of St. Louis, subject to a deed of trust on each; that one of the lots with its improvements was worth $12,000, and the other $7,000; that Baier, being embarrassed and no longer able to meet the interest on the incumbrances, it was arranged that the property should be permitted to go to sale under the deeds of trust, and that Sebastian Berberich should bid it in for the benefit of the plaintiff Louisa; that an amount sufficient to satisfy the bid should immediately be borrowed on the security of the property itself, and the title be vested in the plaintiff Louisa, for her sole and separate use; that both lots were advertised for sale under the deeds of trust, for different days, and that relying upon the assurances of the senior defendant, the plaintiff abstained from any effort to secure competition at the sales; that the defendant John C. Berberich was fully aware of all the facts; that both defendants, before and at the sales, made known that the property would be bought in for the plaintiff Louisa; that they made and caused statements to that effect to be made to persons known or supposed to be desirous of buying, and asked the co-operation of plaintiffs and of others to prevent competition at the sales; that persons desirous of buying, upon learning that the purpose was to bid in the property for the plaintiff Louisa, refused to attend or compete at the sales; that Sebastian Berberich became the purchaser of the property without competition at the trustee sales, but instead of taking the bids in his own name, caused them to be entered in the name of his son, the defendant, John C. Berberich, a young man without means or credit, and directed the deeds to be made to him; that both defendants, until the time of the second sale, and for some time thereafter, recognized the assurances under which they had been permitted to buy the property, but subsequently denied them and refused to carry them out; wherefore plaintiffs aver that the conduct of defendants constituted a gross fraud upon the rights of plaintiff Louisa, and that in consequence thereof, the defendant John C. Berberich holds the title so acquired in trust for her, and they pray the court to so declare and decree, and to divest said title out of said defendant and vest the same subject to the said two deeds of trust in a trustee for the sole and separate use of the plaintiff Louisa, and to order and adjudge the defendant John C. Berberich to execute the necessary deed or deeds to vest said title as herein prayed for, and for such other and further relief in the premises as may be just and proper.

The answer put in issue all the equity alleged in the...