Hull v. Voorhis

• Decision Date: 31 March 1870
• Citation: 45 Mo. 555
• Parties: WILLIAM C. HULL, Respondent, v. CORNELIUS VOORHIS et al., Appellants.
• Court: Missouri Supreme Court

45 Mo. 555

WILLIAM C. HULL, Respondent,

v.CORNELIUS VOORHIS et al., Appellants.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Voorhis & Mason, and Moodey, for appellants.

Under our statute (R. C. 1855, p. 147, § 32), an executor might bid at a sale conducted by himself, under some circumstances, even for himself. There was, therefore, no fraud in law in his bidding per se, if he had bid for himself; much less where he bid for a third party, under written directions. This supposed rule, that an executor can not in good faith and at a fair public sale cry the bid of an absent purchaser, under written instructions made known to all other bidders, is a rule without a reason. (Richards v. Holmes, 18 How. 143, 148; Lucas v. Oliver, 34 Ala. 626, 631; Talliaferro v. Minor, 1 Cal. 531; 2 Am. Law Reg., N. S., 705-713.)Berry and Holliday, for respondent.

I. The evidence shows that the executor was interested in the purchase of the real estate. The court was, therefore, right in setting aside the sale. (Davone v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How. 503; 1 White & Tud. Lead. Cas. in Eq. 201, note; Law of Trusts and Trustees, Tiff. & Bull. 149, 483-4.)

II. The executor was the auctioneer at the sale, and, while acting as auctioneer, bid in the real estate and conveyed the same to his partner, Hellmer. The auctioneer was incapacitated to bid for his co-defendant, more especially while acting as auctioneer, and without declaring the name of the party for whom he was bidding and buying. ( Ex parte Bennett, 10 Ves. Jr. 381; Hawley v. Cramer, 4 Cow. 717; Davone v. Fanning, 2 Johns. Ch. 252; Thornton v. Irwin, 43 Mo. 153; Richards v. Holmes, 18 How. 143.) If an executor desires to buy at his own sale, he must do so under sections 32 and 33, Gen. Stat. 1865, p. 499. It was impossible in this case; the property went below the appraisement. (Sto. on Agency, 254, § 211, note 4; 1 Pars. on Cont. 75, 4th ed.; 1 White & Tud. Lead. Cas. in Eq. 196, 210; Hunt v. Bass, 2 Dev. Ch. 292.) There was fraud in law; there was fraud in fact. (McNair v. Hunt, 5 Mo. 300.) “The general rule is that a party can not purchase on his own account that which his duty or trust requires him to sell on account of another. He can not be both buyer and seller.” (Smith v. Williams, 12 Mo. 109.) Persons thus intrusted, and thus assuming to act for the benefit of others, can not act for themselves so long as the ordinary signification attaches to ordinary words. (Wasson v. English, 13 Mo. 176; Charleville v. Chouteau, 18 Mo. 492; Jamison v. Glascock, 29 Mo. 191; Lich v. Bernecker, 34 Mo. 93; Boardman v. Florez, 37 Mo. 559; Beal v. Harmon, 38 Mo. 435; Thornton v. Irwin, supra;Thomas v. Zumbalen, 43 Mo. 471; Grumley v. Webb, 44 Mo. 444; Allen v. Ranson, 44 Mo. 263.)BLISS, Judge, delivered the opinion of the court.

The plaintiff is the sole heir of Joseph S. Hull, deceased, and defendant Voorhis was his executor. The testator died in July, 1859, the plaintiff being but twelve years of age. He was also the principal creditor of his father, inasmuch as the decedent, as his guardian, had appropriated the child's estate received from his mother. In 1864 the executor obtained from the Probate Court an order for the sale of certain real estate of decedent, for the payment of his debts, being about thirty acres near the fair grounds of St. Louis county, laid out into town lots, and known as Hull's Subdivision, in Grand Prairie common fields.

In applying for the order of sale, he made an exhibit of the estate, and showed that it was indebted to the plaintiff in the sum of $12,310.85, being said guardian's debt, and to other creditors in the sum of $8,771.89, and claimed that it was necessary to sell this land to pay said debts. But the petition did not show that there was any necessity whatever of selling land that was constantly rising in value, in order to pay the boy, who had no guardian, and whose claim had never been presented for allowance; and it also failed to show that of the other debts all but $1,626 belonged to the executor, about $4,000 of which he had purchased at fifty cents on the dollar.

The sale was made at auction in November, 1864, and nearly all the property was bid in, in the name of defendant Hellmer, the business partner of Voorhis, and the deed was made to him. The entry of the transaction upon the partnership books would, taken alone, indicate a partnership interest in the purchase, though it is denied by the partners and book-keeper; but it does not appear that, down to the commencement of this suit, any money had been paid by Hellmer on account of the purchase. It is, however, clear that at the sale the executor and auctioneer were employed by Hellmer to bid for him; that a list of prices for each lot was placed in his hands, beyond which he was not to go; that he sought to get the property for Hellmer as low as possible, and finally succeeded in bidding in nearly all of it for less than the maximum proposed, and less than the appraisal. Another improper commingling of cross-interests was exhibited at the sale, in the fact that Robert S. Voorhis, a brother of the executor, was his attorney and legal counselor in the matters of the estate, was also the attorney and agent of Hellmer at the sale, and was clerk of the auctioneer.

In 1867, Hellmer advertised the whole property for sale at auction; and before the time of the sale, the plaintiff, then nearly of age, by his next friend, commenced this suit to set aside the original sale to Hellmer, and, upon trial at special term, obtained a decree, which was affirmed at general term.

There is no doubt whatever as to the correctness of this decree. There may be doubt whether the evidence warranted the finding of the Circuit Court, that the executor was personally interested in Hellmer's purchase, although...