Griffith v. James

• Decision Date: 31 March 1872
• Citation: 49 Mo. 536
• Parties: DANIEL A. GRIFFITH, Appellant, v. JAMES JUDGE et al. Respondents.
• Court: Missouri Supreme Court

49 Mo. 536

DANIEL A. GRIFFITH, Appellant,

v.JAMES JUDGE et al. Respondents.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Charles Circuit Court.

E. A. Lewis, with W. B. Napton, for appellant.

I. The statements of Chittenden could not have been admitted on the ground of Griffith's presence and acquiescence in them when made, as it does not appear that he was within hearing of the conversations between Chittenden and Orrick. Hess was a bidder, was plaintiff in the execution, and attending particularly to all that transpired; Kingsbury was his attorney, Gatzweiler the sheriff; and yet none of them heard the alleged statements or announcements by Chittenden or Orrick.

II. The statements could not have been admitted on the ground of combination or confederation between Griffith and Chittenden to perpetrate a fraud or other wrong, because: 1. No evidence tends to show the existence of any such combination at the time, to cheat Judge or any one else. (1 Phil. Ev. 493; Metcalf v. Conner, Litt. Sel. Cas. 497.) 2. The declarations do not appear to have been made in furtherance of the pretended common and wrongful purpose. (2 Stark. Ev. 26; Field v. Liverman, 17 Mo. 218; State v. Thibeau, 30 Verm. 100; Commonwealth v. Ingraham, 7 Gray, Mass., 46; Preston v. Bowers, 13 Ohio St. 1.) 3. The case, even as stated by the defendant, is not one of fraud, chicanery or wrong-doing by deceit and combination. 4. Chittenden's statements could not be admitted against Griffith on any ground of partnership between them, or joint undertaking of a common enterprise. The effect of those statements, as against Griffith, is simply to prove the existence of the partnership or joint undertaking, or of its alleged objects, which is the same thing in effect. This is always inadmissible. (2 Stark. Ev. 807; Kirkby v. Hewitt, 26 Barb., N. Y., 607; Robbins v. Willard, 6 Pick. 464; Dixon v. Hood, 7 Mo. 416.)

H. C. Lackland, for respondent.

I. Griffith is bound by the declaration of Chittenden, because, first, everything that occurred at the sale is a part of the res gestæ. The sale, and all that occurred there, are one whole transaction. If he receives the benefit of the declarations, he must also accept the responsibility; if he concurred in the commission of the fraud, he shall not be permitted to obtain a profit thereby. (Stewart v. Severance, 43 Mo. 323, 337; McNeeley v. Hunton, 24 Mo. 281.)

II. Any agreement, combination or contrivance, or any appeal to the sympathies of bidders and bystanders, that enables the purchaser to get the land at a reduced price, will vitiate the sale, and be ground enough to set it aside. (Adams v. Turner, 46 Mo. 95.) The evidence of John C. Orrick alone, in regard to what transpired at the sale, is enough to sustain the decree. The other evidence is simply cumulative and overwhelming. (2 Sto. Eq., § 1265; Wooton v. Hinkle, 20 Mo. 290; Neal v. Stone, id. 295; Stewart v. Nelson, 25 Mo. 309, 312; Slowey v. McMurray, 27 Mo. 118; Turner v. Turner, 44 Mo. 535, 538-9 McNew v. Booth, 42 Mo. 189, 192; Grumley v. Webb, 44 Mo. 444.)

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment for lands in St. Charles county. The defendants, except Judge, were merely nominal parties, being his tenants, and having no interest in the controversy.

The defendant Judge, by his answer, set up an equitable defense, to the effect that the plaintiff's title was by sheriff's deed, at execution sale against the defendant, on a judgment rendered against defendant in the Circuit Court of St. Louis county, in favor of Charles J. Hess as administrator of Mary Ann Judge; that the plaintiff and Chittenden bought the property at the execution sale, under an agreement with the defendant that they would bid it off for him and give him a bond for title to convey it to him as soon as he refunded the amount bid for it. The property comprehended several thousand acres, and was covered by several deeds of trust, amounting in the aggregate to some $50,000, the whole property comprehended in the deeds of trust being worth more than $100,000. The answer, in effect, set up that at the execution sale there were many persons ready to bid, and the bidders were induced not to bid by the acts and declarations of the plaintiff and Chittenden, creating the impression that they were bidding the property off for the defendant.

The relief prayed for is that the sheriff's deed may be set aside as fraudulent and void, and that the title acquired by the plaintiff and Chittenden be vested in defendant.

During the progress of this cause in the Circuit Court, Chittenden died, leaving his wife his sole devisee, who was made a party plaintiff, and afterward compromised with the defendant and conveyed to him all the interest she held in the premises, and on her motion her name was stricken out of the case.

On the trial, evidence was given conducing to show that the alleged agreement set up in the answer was made, and evidence on the other hand that no such agreement had been made. With...