Keiser v. Gammon

• Decision Date: 21 May 1888
• Citation: 8 S.W. 377,95 Mo. 217
• Parties: Keiser et al. v. Gammon et al., Appellants
• Court: Missouri Supreme Court

8 S.W. 377

95 Mo. 217

Keiser et al. v. Gammon et al., Appellants

Supreme Court of Missouri

May 21, 1888

Appeal from Saline Circuit Court. -- Hon. J. P. Strother, Judge.

Reversed.

Graves & Aull and Davis & Willis for appellants.

(1) The case, as made by respondents, if sustained by evidence, is a resulting trust; and the law governing resulting trusts must determine the rights of these parties. Jackson v Wood, 88 Mo. 77; McNew v. Booth, 42 Mo. 192 Faust v. Hass, 73 Pa. St. 295; Christy v Sill, 95 Pa. St. 382; 1 Lomax Dig. 200; 2 Story's Eq. [12 Ed.] sec. 1265. (2) And as said in Jackson v. Wood, supra, "before relief can be granted, the fraud must be established by clear and convincing evidence." Jackson v. Wood, 88 Mo. 77; Forrester v. Scoville, 51 Mo. 268; Durkee v. Chambers, 57 Mo. 581; Morey v. Staley, 54 Mo. 421; Kennedy v. Kennedy, 57 Mo. 76; Forrester v. Moore, 77 Mo. 651; Knowles v. Mercer, 57 Mo. 76. (3) Hill's unsupported evidence is wholly insufficient to sustain the decree. Cornet v. Bertelsman, 61 Mo. 126-7; Kerr on Fraud, 384. (4) The evidence shows appellants paid full value for the land at twenty-two hundred and eleven dollars. (5) Upon value the court erroneously excluded deeds showing that this land sold under prior deed of trust for thirteen hundred and ninety-six dollars, one year and seven months before appellants bought, and in same month at private sale for sixteen hundred dollars; and, again, at private sale, one year and four months before appellants bought, respondents' ancestor bought same for seventeen hundred and seventy-one dollars; also the evidence of Tutt, Thomas, and Ewing in connection with these deeds. Thornton v. Compton, 18 N.H. 20; State to use v. Schol, 47 Mo. 84; Britton v. Stanley, 4 Whart. 114; Kent v. Whiting, 91 Mass. 63; Croak v. Owens, 121 Mass. 28; Brigham v. Evans, 113 Mass. 540; Benham v. Dunbar, 103 Mass. 365. (6) The decree allowed appellants for improvements a sum far below the amount proved. (7) Respondents' brief claims that nothing should be allowed. But they are estopped. Their petition prays that appellants be allowed for improvements and taxes. The case was tried on that theory. Lemon v. Chanslor, 68 Mo. 353.

John E. Burden and W. P. Bradshaw for respondents.

(1) The fraud of said Wm. T. Gammon, in suppressing competition at said sale, and procuring said lands at less than their cash value vitiates said sale, as to him and his said wife, of whom he was agent. 1 Perry on Trusts [2 Ed.] sec. 172; Massey v. Young, 73 Mo. 260; Stewart v. Nelson, 25 Mo. 309; Abbey v. Dewey, 25 Pa. St. 413; Stewart v. Severance, 43 Mo. 322; Turner v. Adams, 46 Mo. 95; Miltenberger v. Morrison, 39 Mo. 71; Wagner v. Pellips, 51 Mo. 117; Durfee v. Moran, 57 Mo. 374; Wooton v. Hinkle, 20 Mo. 290. (2) The conduct of Tutt, the trustee, was sufficient to vitiate the sale. He could not bid at the sale for appellants. Besides, he sold at an unusual hour and arranged with appellants to loan them fifteen hundred dollars of the purchase money of said lands, before said sale, for which he and his son received one per cent. commission. Hull v. Voorheis, 45 Mo. 555; Michaud v. Girod, 4 How. 552; Neal v. Stone, 20 Mo. 294; Stoffel v. Schroeder, 62 Mo. 147. The trustee bid in the property himself for less than what he told parties he was offered for it. Meyer v. Ins. Co., 5 Mo.App. 245; Neal v. Stone, 20 Mo. 294. Sale of part of premises would have been sufficient to pay the debt. Tatum v. Halliday, 59 Mo. 422; Chesley v. Chesley, 49 Mo. 540; Stewart v. Nelson, 25 Mo. 309. (3) The respondents are not estopped by reason of any improvements made on said lands because three of them, to-wit: Charles Alex., Virgie, and Forest Keiser, were minors up to the time and after the time of the commence ment of this suit, and none of said respondents had any knowledge of the fraudulent acts of appellants at the time said improvements were being put upon said premises. Tatum v. Halliday, 59 Mo. 422; Henrioid v. Neusbaumer, 69 Mo. 46. (4) The appellants having procured said lands by fraud are entitled to no compensation for improvements. "It is only a bona-fide occupant of land who is allowed to mitigate the damages by offsetting the value of his improvements to the extent of rents and profits claimed." See v. Bowman, 55 Mo. 400; Woodhull v. Rosenthal, 61 N.Y. 396; New Orleans v. Gaines, 15 Wall. 624; Allen v. Berry, 50 Mo. 90; Dothage v. Stewart, 35 Mo. 251; Barlow v. Bell, 10 Am. Dec. 731. (5) The court did not err in excluding evidence of former sales of this land, and the state of the market, as offered by respondents. Tate v. Railroad, 64 Mo. 153, and cases cited; Railroad v. Patterson, 19 Rep. 408, and cases cited; Crum v. Holman, 19 Ind. 30-37; McCracken v. West, 17 Ohio 24; Railroad v. Benson, 36 N. J. Law, 554. (6) The court did not err in admitting the statements of Powell and Adams as to what the trustee told them. Meyer v. Ins. Co., 5 Mo.App. 245.

OPINION

Norton, C. J.

On the twenty-eighth of February, 1878, William, the father and ancestor of the plaintiffs in this suit, executed and delivered to one John A. S. Tutt, as trustee, a deed of trust conveying certain lands specifically described as containing two hundred acres, more or less, to secure the payment of a certain note for fifteen hundred and thirty dollars, payable to one Robert W. Cox; said Keiser died on the twenty-fifth of August, 1878, before the maturity of the said note. On the thirtieth of June, 1879, the said land was sold in mass at public auction in front of the courthouse door in Lexington, for twenty-two hundred and eleven dollars to the defendants, who received a deed therefor from the said trustee. On the nineteenth of July, 1882, this suit was begun in the circuit court of Lafayette county, to set aside said sale and cancel said deed, first, on the ground that the land being in two parcels, was sold in mass, when it would have brought more had it been sold separately; second, that one Robert A. Hill, who was a competing bidder at said sale, was induced to refrain from bidding at the sale, by the persuasion and promise of defendant, Wm. T. Gammon, to pay him five hundred dollars if he would not bid against him. The grounds relied upon in the petition to set aside the sale were specifically denied in the answer, and at the April term, 1883, of the Lafayette circuit court, a trial of said cause was had which resulted in a mistrial, whereupon the venue of the cause, at the instance of the defendants, was changed to the circuit court of Saline county, where, at its October term, 1883, the following issues were framed and submitted to the jury, who found as follows:

"1. Was the land sold to Tutt, as trustee to defendants, of greater reasonable cash value at the time of such sale than twenty-two hundred and eleven dollars; and if so state what their reasonable cash value was at that time? A. Yes -- $ 3,088.44."

"2. Would the land have sold for more money, if sold in parcels, than sold in a body? if so, how much more in your opinion? A. It is the opinion of the jury it would not."

"3. Did said trustee, Tutt, negotiate or aid in procuring a loan for defendants, or either of them, to be used in buying this land? If so, did said Tutt have knowledge or information that such money was to be so used? A. It is the opinion of the jury he did."

"4. Did defendant, William T. Gammon, by any means prevent Robert A. H. Hill from bidding, or by persuasion, entreaty, or offer, or promise of compensation, induce said Hill not to bid on said land at said sale? If so, state what means were so used, or offers, or promise of compensation, and state whether said Hill would have bid on said land more than Gammon's bid, and how much more? A. We, the jury, believe that the said Robert A. H. Hill was, by persuasion or otherwise, stopped from bidding by Gammon. We think said Hill would have bid more, how much more we cannot say."

"5. You will find and state the fair rental value of the land since defendants have been in possession, and also the fair value of the permanent improvements, if any, put upon said lands by defendants. A. We find total value of rents to be $ 1,531.27. We find total value of permanent improvements to be $ 1,827.04."

"6. If any of the plaintiffs knew of the defendants' putting valuable and lasting improvements upon the lands, state when they so knew it or learned it, and which of plaintiffs so knew it; and whether the party so knowing it, at the same time knew of any of the alleged fraudulent acts of Gammon in the matter of the purchase; and if so, whether such person gave notice to Gammon at the time of the claim that his title was not good or that it would be contested. A. We find that Mrs. Burnside, Effie, Virgie, and Forest Keiser, all knew of improvements being made in the winter of 1879 and 1880. We don't think they knew of any of the alleged frauds of Gammon at that time."

The court adopted the findings and entered a decree setting aside the sale, and defendants appealed.

On the trial, defendants offered in evidence a deed showing that about seventeen months before the sale in question was made, that the land in controversy sold under a prior deed of trust for thirteen hundred and ninety-six dollars; and also a deed showing that in the same month defendants bought the said land, it sold at private sale for sixteen hundred dollars, and that sixteen months before defendants purchased the land at said sale, the ancestor of plaintiffs bought it for seventeen hundred and seventy-one dollars; and in connection therewith the evidence of three witnesses was offered to the effect that since said sales, up to July, 1879, there had been no increase in the value of the land. This evidence the court refused to receive, and its...