Charles Green Real Estate Co. v. St. Louis Mutual House Building Company No. 3
| Decision Date | 22 May 1906 |
| Citation | 93 S.W. 1111,196 Mo. 358 |
| Parties | CHARLES GREEN REAL ESTATE COMPANY, Appellant, v. ST. LOUIS MUTUAL HOUSE BUILDING COMPANY NO. 3 et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jno. A. Blevins Judge.
Affirmed.
Kinealy & Kinealy for appellant.
(1) The exclusion of Green's testimony was error. Clark v Thias, 173 Mo. 628; 30 Am. and Eng. Ency. Law (2 Ed.) 1046. (2) The exclusion of Green's testimony injured plaintiff. Cole Co. v. Madden, 91 Mo. 585. (3) The arrangement made by the trustee with purchasers who had no interest in the proceedings save to speculate on a good bargain ought to cause a reversal of the judgment. Cassidy v. Wallace, 102 Mo. 581. (4) The sale ought not be upheld, but should be annulled because of the course pursued by the trustee in selling on credit. 2 Jones on Mortgages (6 Ed.), sec. 1868; Coler v. Barth, 24 Col. 31; Scott v. Lumber Co., 67 Cal. 71; Snyder v. Railroad, 131 Mo. 566; Mead v. McLaughlin, 42 Mo. 203. (5) Defendants Maginn and Labsap are not innocent purchasers. 14 Am. and Eng. Ency. Law (2 Ed.), 289. (6) The purchaser is charged with notice of every requirement contained in the mortgage as to terms of sale. 2 Jones on Mortages (6 Ed.), sec. 1868.
F. A. Wislizenus, J. P. Maginn and S. Labsap for respondents.
(1) Mere inadequacy of price, unaccompanied by fraud or unfair dealing, is not a sufficient ground for setting aside a sale under a mortgage or a deed of trust. Keith v. Browning, 139 Mo. 190; Hardwicke v. Hamilton, 121 Mo. 465; Phillips v. Stewart, 59 Mo. 491; Railroad v. Brown, 43 Mo. 294; Maloney v. Webb, 112 Mo. 575; Harlon v. Nation, 126 Mo. 97; Markwell v. Markwell, 157 Mo. 326. (2) Agreement by beneficiary to bid the land in at the trustee's sale and permit redemption in a few days thereafter, where no consideration for the agreement is mentioned in the petition, and none proved and no fraud is shown, is not sufficient ground to support a suit to set aside a sale under deed of trust. Parketon v. Schlueter, 145 Mo. 55. (3) Green's possible evidence as to his alleged conversations and oral agreements with Simmons, as former president of the House Building Company and managing head of the trustees in liquidation of said company, that such trustees, or Simmons himself, on their behalf, would bid in the property at the sale under the deed of trust, was properly excluded by the trial judge, Simmons being dead. Sec. 4652, R. S. 1899; Williams v. Edwards, 94 Mo. 452; Butts v. Phelps, 79 Mo. 302; Brim v. Fleming, 135 Mo. 606; Hollman v. Lange, 143 Mo. 106; McCormick H. M. Co. v. Heath, 65 Mo.App. 461; Aultmann v. Adams, 35 Mo.App. 503; Clark v. Thias, 173 Mo. 645; Banking House v. Rood, 132 Mo. 256; Robertson v. Reed, 38 Mo.App. 32; Baker v. Reed, 162 Mo. 355; Patton v. Fox, 169 Mo. 107; Davis v. Wood, 161 Mo. 29. (4) Green's testimony as to such alleged oral conversations and agreements was also properly excluded, because there was no evidence offered tending to show that Simmons had any authority on behalf of the trustees of the House Building Company to enter into any such alleged agreement to bid in the property. The former directors were, under section 976, R. S. 1899, settling up the affairs of a dissolved corporation, under the resolution of its board of directors of November 30, 1900, the charter having expired by limitation prior thereto. 1 Greenleaf on Evidence, sec. 114; Williams v. Edwards, 94 Mo. 451. (5) Moreover, there was no evidence whatever tending to show any knowledge or notice, prior to their purchase of the property, on the part of Maginn or Labsap that such alleged oral agreements had been made between Simmons and Green. (6) The sale by the trustee was for cash; it is usual and proper to demand a sufficient deposit, and allow a reasonable time to the purchaser to complete payment. Davis v. Hess, 103 Mo. 31; 2 Jones on Mortgages (5 Ed.), sec. 1866; Jones v. Moore, 42 Mo. 421; Goode v. Comfort, 39 Mo. 326. (7) Plaintiff has shifted completely its theory, from those of the petitions filed, successively, by it in the lower court, and on which that court heard the evidence. There was no allegation of any misconduct whatever by the trustee or by the purchasers, at the sale; none of any failure of the trustee to comply, in making the sale, with the provisions of the deed of trust; there was no evidence offered at the trial of any alleged agreement of any kind between the trustee and the purchasers, Maginn and Labsap, all of whom were present at the time, and two of whom testified, to the effect that the trustee would sell to them on credit; nor is there any evidence in the record to that effect. Dunnigan v. Green, 165 Mo. 113; Huling v. Stone Co., 87 Mo.App. 349; Hall v. Goodnight, 138 Mo. 576; Minton v. Steele, 125 Mo. 181; Bray v. Seligman, 75 Mo. 31; Harper v. Morse, 114 Mo. 317.
This is a suit in equity, the purpose of which is to have set aside a sale, under a deed of trust, of certain real estate in the city of St. Louis. Charles Green was the owner of the property. On the 3rd day of August, 1896, he and his wife executed a deed of trust on said property to defendant Frederick A. Wislizenus, trustee, to secure the payment of a bond, therein described, for $ 12,083.96, with interest, for money borrowed by them from the defendant, the St. Louis Mutual House Building Co. No. 3, which deed of trust contained a provision directing a public sale of the property, by the trustee, to the highest bidder for cash, on twenty days' public notice by advertisement in a St. Louis newspaper, giving the time, place and terms of sale, in case of default in the payment of the principal or interest upon said bond, and upon such sale to execute a deed in fee simple to the property sold to the purchaser, the proceeds to be applied to the payment of costs and expenses, and then to the payment of the amount of the principal debt, with all interest in arrear, the remainder, if any, to be paid to said Green.
At said sale the trustee announced that he would require the purchaser to pay the sum of $ 500 at the time of the sale. Sigmund Labsap, who was the highest and best bidder, became the purchaser of the property for the sum of $ 8,025 cash, and the trustee executed a deed, dated May 24, 1901, conveying said property to said Labsap, which deed was acknowledged before a notary public on June 6, 1901, and recorded in the recorder's office in St. Louis on June 8, 1901.
The evidence showed that Sigmund Labsap and James P. Maginn bought the said property jointly for their own account solely. Labsap subsequently, on June 20, 1901, conveyed an undivided one-half interest to Maginn, and paid for it out of their own funds; Labsap having borrowed on his note, secured by deed of trust on the said property, from the St. Louis Union Trust Co., the sum of $ 6,500, and said Labsap and Maginn obtained possession of said property about December, 1902; made repairs costing $ 800; paid taxes due on it for years 1901 and 1902, rented it for $ 87.50 per month in April, 1903.
On July 8, 1901 (forty-six days after the sale), plaintiff filed a petition in the St. Louis Circuit Court against St. Louis House Building Company, which except as to certain parties defendant is substantially identical with the first petition filed in the case at bar.
This action of July 8, 1901, was pending until April 10, 1902, on which date the plaintiff voluntarily dismissed the same. Mr. Simmons, a defendant therein, having died on September 16, 1901, after service of process on him, his executors, Amos M. Thayer and Edgar L. Taylor, appeared and answered, filing a general denial on December 2, 1901. The other defendants also filed general denials. It was the petition in this cause, and the entries as to process and pleadings therein which were first offered in evidence by plaintiff on April 18, 1903, when the second suit brought April 10, 1902, came on for trial.
On April 10, 1902, plaintiff brought the present action. In this first petition, plaintiff alleges that the conversation and agreements between Charles Green, on behalf of plaintiff, and Samuel Simmons, were to the effect that Simmons announced the liquidation of the Building Company and the calling in of its loans including the Green loan, but that Simmons individually agreed to procure for plaintiff a new loan for $ 10,000 on the security of the same property, which would fully pay off all owing on said bond and all taxes and assessments levied on said property to the Building Company; that Simmons on various pretexts delayed making said new loan from time to time, and finally announced, in 1901, his inability to make said loan, on account of the said company's liquidation and would be compelled to sell said real estate under the provisions of the said deed of trust; that Green claimed such a sale was a breach of the contract between Simmons (individually) and plaintiff; and threatened steps to prevent such sale; that Simmons then, to deceive plaintiff and Green throw them off of their guard, and retain this property for himself, at an inadequate price, told Green that he need not take any steps for the plaintiff's protection against the consequences of the sale, because he, Simmons, would see that said real estate would be purchased at said sale by the Building Company No. 3, holder of said bond, and that plaintiff would be permitted thereupon to file the bond provided for in section 4343, Revised Statutes 1899, and obtain a year's time for the purpose of redeeming from said sale by making a new loan and paying off in full the Building Company's demand; that Green relied on the promise of Simmons, and thereupon and pursuant to such arrangement the trustee Wislizenus advertised the...
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