Boehlert v. McBride

• Decision Date: 31 October 1871
• Citation: 48 Mo. 505
• Parties: LAWRENCE BOEHLERT et al., Plaintiffs in Error, v. JOHN C. MCBRIDE, Defendant in Error.
• Court: Missouri Supreme Court

48 Mo. 505

LAWRENCE BOEHLERT et al., Plaintiffs in Error,

v.JOHN C. MCBRIDE, Defendant in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Perry Circuit Court.

B. Cassell, for plaintiffs in error.

The sale by the sheriff was a mere snam to evade the law prohibiting him from purchasing at his own sale. A purchase of the trust estate per interposition personam by a trustee, at an inadequate price, carries fraud on its face. (Smith v. Williams, 12 Mo. 106-9.)

He cannot, without an enabling act, purchase at a sale made by himself. (2 Am. Law Reg. 729, §§ 35, 38, and note; Goode v. Comfort, 39 Mo. 325, 607; Hull v. Voorhis et al., 45 Mo. 555; Hill on Trust. 223; Jamison v. Glasscock, 29 Mo. 191-8.)

He cannot speculate for his private gain with the subject-matter committed to his care, to the prejudice of his principal. (Grumley v. Webb, 44 Mo. 451; State v. McKay, 43 Mo. 603; Thornton v. Irwin, 43 Mo. 165; Boardman v. Florez, 37 Mo. 561; R. C. 1855, p. 747, § 52; Rea et al. v. Copelin, 47 Mo. 83.)

J. C. Killian, for defendant in error.

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding in equity, brought to set aside a sale under a deed of trust. The sale sought to be set aside was made on the 2d day of February, 1863. It appears that the trustee died prior to the sale, and that the sale was made by the defendant as sheriff of Perry county. The petition charges that the sale was fraudulent; that the defendant purchased the property at his own sale, in the name of a third party, at a depreciated price; that he discouraged bidding; and that the sale was made by the sheriff, when it ought to have been made by the legal representatives of the deceased trustee. It is averred in the petition that the provision in the deed of trust was that upon default of payment the sale should be made by the “trustee or his legal representatives, or, in case of death or absence from the State, by the sheriff.” The answer alleges that the provision on this subject was that the sale should be made by the sheriff in case of the death or absence of the trustee, making no mention of his legal representatives. So far as these two statements are in conflict, the latter must be regarded as a contradiction of the former, leaving the point of difference to be determined by the evidence.

At the trial the plaintiffs read in evidence the sheriff's deed executed in pursuance of the sale, and that recited the provision in the deed of trust in regard to a sale by the sheriff in accordance with the allegations of the defendant's answer; and that was all the evidence there was in regard to the matter. The deed of trust itself was not put in evidence by either party, so that we are left in the dark as to its exact provisions, and must accept the recitals of the sheriff's deed as stating the clause in question truly.

The evidence of fraud in the sale, or of improper conduct on the part of...