Hambright v. Brockman

• Decision Date: 31 January 1875
• Citation: 59 Mo. 52
• Parties: JOHN HAMBRIGHT, Defendant in Error, v. CHARLES G. BROCKMAN, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

59 Mo. 52

JOHN HAMBRIGHT, Defendant in Error,

v.CHARLES G. BROCKMAN, et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1875.

Error to Jackson Circuit Court.

J. B. Hovey, for Plaintiff in Error, cited in argument: 1 Greenl. Ev., §§ 99-100; Wagn. Stat., 1372, § 1; Bac. Abr. Title Statutes, let. F.

J. K. Sheley, for Defendant in Error, cited in argument: Kane vs. McCown, 55 Mo., 198.

NAPTON, Judge, delivered the opinion of the court.

This proceeding was instituted by Hambright, as a purchaser under a sale made by the trustee in a deed conveying land to secure said Hambright, and the object of the petition was to establish the equitable title of the grantor in the deed of trust against the defendants claiming to be tenants in common with him or his wife under the legal title; and to have the whole legal title transferred to the plaintiff.

The facts not controverted, were these: In 1858, at a sale of some land in Jackson county, belonging to the estate of one Colcord, by the administrator, Dr. Waldo, Wm. Cogswell became the purchaser; but before the administrator made him a deed, Cogswell died, leaving three daughters, one the wife of the defendant, Matthews, and the two others married, and made defendants in this case. In 1869, eleven years after the sale Waldo made a deed for this land to these three daughters of Cogswell, he having been advised to do so by his law adviser. It would seem from this, that the purchase money had not been fully paid till this time. About the same time, in 1869, Matthews and wife borrowed of plaintiff, Hambright, about $600, and made a deed of trust to S. H. Woodson, conveying this same land to Woodson, as trustee, to secure the payment of this sum. This deed does not anywhere appear in the record; but it is agreed and so stated in the bill of exceptions, that by its terms Woodson was authorized to sell this land in default of payment, and after a specified notice, “at the court house door in the city of Independence.” It seems, that when the time for the sale under the advertisement arrived, and for some time prior thereto, the court house at Independence was undergoing repairs, and had in fact been partially taken down, and the courts were held in an upper room of a building on the public square, over a bank, which had been appropriated by an order of the County Court to the transaction of public business during the reconstruction of the court house.

About these facts there was no controversy. But the petition asserted that Cogswell's purchase was merely nominal; that Waldo made the sale to him, at his instance, but that his son-in-law, Matthews, was the real purchaser, who, being in failing circumstances and overwhelmed with debt, procured his father-in-law, Cogswell, to buy the land for him, and advanced the money to pay for it, and that this was done to protect the property from Matthew's creditors. The petition therefore asks, that Matthews be decreed the real owner, and that the deed to Cogswell's heirs be considered as for the benefit and sole benefit of Matthews, and that the conveyance of Matthews to Woodson for the benefit of plaintiff, be regarded as the conveyance of the whole title, and that the sale of Woodson be regarded as conveying the whole title to plaintiff, who was the purchaser at that sale.

The answer of Matthews denies all this, and so does that of his co-defendant.

By agreement, the following issues were submitted to a jury; 1st. At a sale of the land in controversy made by Waldo, administrator of Colcord, did J. P. Matthews in fact become the purchaser, and furnish the money to pay for the same? 2d. Did J. P. Matthews and William Cogswell, for the purpose of defrauding the creditors of Matthews, secure Waldo as such administrator to report Cogswell as the purchaser, and to make the deed accordingly? 3d. Was the sale of the lands in controversy, and at which Hambright became the purchaser, made by Woodson as trustee, made at the court house door in the county of Jackson?

On the trial of these issues Waldo testified, that he sold the land to Cogswell and made a deed to Cogswell's heirs; that Matthews made several payments--and Cogswell also--but Cogswell represented himself as agent for Matthews in making payments; but the witness never understood from either on whose account these payments were made.

Hambright, the plaintiff, testified that when Matthews wanted to borrow the money mentioned in the deed of trust to him, he said to him that he had used Cogswell's name in the purchase of the land, because he (Matthews) was embarrassed. This testimony was objected to, on the ground that Matthews' declarations were incompetent to affect the title of Cogswell but the objection was overruled and an exception taken. This witness further stated, that at the time Matthews was negotiating for the loan, he said that the land in controversy was his; that it was bought in the name of Cogswell, because he, Matthews, was greatly embarrassed, and the land so bought to save it; that he (Matthews) paid all the money for it, and that the money he wanted of plaintiff was to pay off the balance of the purchase money. Exceptions were taken to this evidence.

Woodson, the trustee, stated, that on the day of the sale as advertised by him, he went to the north door or entrance of the court house and proclaimed, that as the court house was pulled down to its first story, he would sell at the front entrance to the place where the courts were then held, which was at ““Bank Hall,” and on the right of the court house, and there a court was then in session; that a sale was then made, and that an order of the County Court was produced directing the building designated as “Bank Hall” to be used as a court house.

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