Hamrick v. Lasky

• Decision Date: 29 June 1937
• Docket Number: No. 24010.,24010.
• Citation: 107 S.W.2d 201
• Parties: HAMRICK v. LASKY et al.
• Court: Missouri Court of Appeals

107 S.W.2d 201

HAMRICK v. LASKY et al.

No. 24010.

St. Louis Court of Appeals. Missouri.

June 29, 1937.

Rehearing Denied July 6, 1937.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action in equity by E. J. Hamrick, as guardian of Theresa Pankey, a person of unsound mind, against Edward Lasky and others. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

J. H. Schaper, of Washington, Mo., Harrison W. Stanze, of St. Louis, and R. E. Kleinschmidt, of Hillsboro, for appellant.

Terry, Terry & Terry, of Festus, for respondents Edward Lasky and Edward Realty Co.

SUTTON, Commissioner.

This is an action in equity. From a judgment for defendants, plaintiff appeals.

On June 5, 1931, and for a long time prior thereto, Karl R. Pankey and Theresa Pankey, his wife, were the owners as tenants by the entirety of a tract of 3.98 acres situate near Pevely, in Jefferson county. There was a deed of trust on the property securing the payment of a note for $1,300, held by J. Ed. Craft. On June 5, 1931, the property was sold at the courthouse door at Hillsboro by the sheriff of Jefferson county as successor trustee pursuant to the power of sale given in the deed of trust. In making the sale, the sheriff acted in lieu of the trustee named in the deed of trust, who was then deceased. Publication of notice of the sale was duly made pursuant to the terms of the deed of trust. The Naert Realty Company, a partnership, being the highest bidder at the sale, became the purchaser at the price of $1,500, which was sufficient to pay the note secured by the deed of trust, and the expenses of the sale, but the sheriff's deed was made to defendant Edward Realty Company.

At the time of the foreclosure sale, Theresa Pankey was insane and was a patient in the State Hospital at Farmington. Some time prior to the foreclosure sale, Karl R. Pankey listed the property with the Naert Realty Company for sale. The Naert Realty Company contacted defendant Edward Lasky, who was president of the Edward Realty Company. Negotiations between Edward Lasky and the Naert Realty Company resulted in a contract between the Naert Realty Company and the Edward Realty Company for the sale of the property to the Edward Realty Company for the sum of $4,000. This contract was entered into on or about May 1, 1931. The terms of the contract were cash, the purchaser to have a good title free and clear of liens and encumbrances, and at the time the contract was entered into Edward Lasky gave the Naert Realty Company a check for $200 as earnest money. When he received the sheriff's deed at the foreclosure sale, he gave J. Ed. Craft a check for $1,300, and gave the Naert Realty Company a check for $2,500, which with the $200 previously paid as earnest money amounted to $4,000, the purchase price agreed upon between the Naert Realty Company and the Edward Realty Company. The Naert Realty Company gave Karl R. Pankey a check for $2,203.27, which was the balance of the proceeds of the sale remaining after payment of the note secured by deed of trust, including accrued interest, and payment of the expenses of the sale. On June 9, 1931, Karl R. Pankey deposited this check in the Bank of Pevely. The evidence shows that this deposit was afterwards checked out by Karl R. Pankey.

The Edward Realty Company is a family corporation, having its office in the city of St. Louis. The Naert Realty Company is a partnership, having its office in the city of St. Louis. Edward Lasky at the time he purchased the Pankey property was a resident of St. Louis, and so were the Naerts.

Plaintiff charges in his petition that the foreclosure sale was brought about, pursuant to a conspiracy between Karl R. Pankey, the defendants, and the sheriff, for the purpose of defrauding Theresa Pankey out of her interest in said property and the proceeds thereof, and prays judgment for the said sum of $2,203.27 received by said Karl R. Pankey from the proceeds of said foreclosure sale, and prays further that said sum be declared a lien on said property.

Though plaintiff charges that the transaction through which the Edward Realty Company obtained title to the property was fraudulent, yet he treats the foreclosure sale and the deed made pursuant thereto as valid, and seeks to obtain a judgment against the purchaser for that part of the purchase price which was paid to Karl R. Pankey instead of the sheriff, who made the sale as successor trustee, and to have the same charged as a lien on the property.

The evidence shows that at the foreclosure sale Miss Terry, representing J. Ed. Craft, and someone representing the Naert Realty Company bid on the property.

Carl Clark, the sheriff, testified that he got all he could for the property and knocked it down to the highest bidder and made the deed in accordance with the directions of the purchaser, and that everything was done regularly and in accordance with the statute, and that so far as he knew everything was all right.

Karl R. Pankey died in 1932. He had some life insurance payable to Theresa Pankey. E. J. Hamrick was appointed as guardian for Theresa Pankey and collected this life insurance as her guardian. Theresa Pankey had no guardian prior to the appointment of plaintiff as her guardian. Plaintiff was appointed as her guardian a few months after the death of Karl R. Pankey.

J. Ed. Craft died prior to the trial of this case.

Plaintiff introduced testimony tending to show that the property at the time of the foreclosure sale was worth from $5,000 to $6,000, but the testimony on behalf of defendants tends to show that it was not worth over $1,500.

Pauline Craft testified, for plaintiff, that she was a daughter-in-law of J. Ed. Craft, and that a few weeks before the foreclosure sale she heard Karl R. Pankey ask Mr. Craft to foreclose his deed of trust.

Emil Naert testified that he was a member of the copartnership firm of Naert Realty Company; that his brother August Naert, a member of the firm, who died prior to the trial, handled the sale of the Pankey property; that Mr. Pankey made repeated calls at the office of the firm; that Mr. Pankey told his brother he had to dispose of that property, that he was afraid he would be left without anything because he did not have money to pay the taxes and the interest, and he was afraid he was going to be foreclosed; that he saw Edward Lasky in the office in the first part of May, 1931; that he understood that Mr. Lasky wanted to buy property in the county on account of his health; that when Mr. Pankey was in the office he heard him say he was about to be foreclosed, and that he could not pay the interest or the taxes; that he never heard Mr. Pankey say that he wanted to sell out his wife's interest in the property so that he could get title to it.

Edward Lasky testified that in the spring of 1931 he was very sick, and that the doctors ordered him to go out to the country; that the Naert Realty Company contacted him with regard to the Pankey property; that in April, 1931, he and his wife had some one to drive them out to the property, and they looked it over; that they found Mr. Pankey and a lady there with three children; that the lady called Mr. Pankey Karl; that Mr. Pankey and the lady showed...