McDaniel v. Sprick
| Citation | 249 S.W. 611,297 Mo. 424 |
| Parties | ANGELINE P. McDANIEL et al., Appellants, v. HENRY G. SPRICK et al |
| Decision Date | 05 March 1923 |
| Court | United States State Supreme Court of Missouri |
Appeal from Marion Circuit Court. -- Hon. Charles T. Hays, Judge.
Reversed and remanded (with directions).
Harry S. Rouse and Stewart & Stewart for appellants.
(1) The respondent, became the purchaser and under the evidence he knew he was to receive the deed from the trustee when the land was knocked off to Simpson, and he gave Mesmer $ 25 not to bid in order that he could purchase the land for less than its reasonable market value. Keiser v. Gammon, 95 Mo. 224; Massey v. Young, 73 Mo. 273; Cooley on Torts, 476; Shuck v. Co., 244 Mo. 370. It is now the uniform doctrine that any combination at public or private sale, having the effect of preventing competition in bidding is against the policy of the law and void. In the present case, Mesmer desired to purchase the land and he was silenced by Rogers (the purchaser) by the payment of $ 25, and it was agreed and understood by and between Rogers and Simpson that the deed was to be made to Rogers, which was done. Durfee v. Moran, 57 Mo. 379; Neal v. Stone, 20 Mo. 95; Wooton v. Hinkle, 20 Mo. 290. (2) The court erred in excluding the evidence of witness, justice of the peace. Prior to the trial Mesmer testified in an unlawful detainer case of Byers v. McDaniel, tried before the witness, and at that time Mesmer, testified that Simpson and Rogers approached him and asked what he would take for his day's work and he replied $ 50. Afterwards Rogers agreed to pay him $ 25. Rogers paid him $ 25. Simpson was present at the time. Appellants were misled, surprised and entrapped by the testimony of witness, Mesmer. Clancy v. St. Louis Transit Co., 192 Mo. 642; Dueleber v. United Ry. Co., 195 Mo. App., 658; State v. Burk, 132 Mo. 373; Greenleaf on Evidence (16 Ed.) sec. 444, p. 565. (3) Respondents attempt to plead an estoppel in their answer. They charge that Charles McDaniel accepted a few dollars of surplus and thereby ratified the sale. Our motion to strike out that part should have been sustained. Before anyone can be charged with ratification the party charging must not only charge but prove that the party charged knew the facts when the act was committed. The answer charges that we received the surplus but not with full knowledge, that bidders had been bought. The evidence shows Charles McDaniel was at that time sick. He had no opportunity to know the facts concerning the sale. No conduct or silence on the part of McDaniel could work an estoppel without he knew all the facts. Acton v Dooley, 74 Mo. 63; Galbreath v. Newton, 30 Mo.App. 380; Moore v. Ryan, 31 Mo.App. 474; 28 Am. & Eng. Enc. Law (2 Ed.) 843.
James C. Dorian for respondents.
(1) The burden of showing fraud is upon the party attacking the deed and to justify a cancellation of the deed the evidence adduced to establish the fraud must be clear and convincing. Keiser v. Gammon, 95 Mo. 224; Forrester v Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423; Jackson v. Wood, 88 Mo. 77. The evidence of all the witnesses is that the actual purchaser at the sale was McKim; that he purchased through his agent, Simpson; that the respondent, Rogers, was not interested in the purchase until the next day when he actually purchased the land from McKim. Admitting (which we do not) that fraud existed between Mesmer and Rogers, that would not affect the title in the hands of McKim, who purchased the land in the open market, at public outcry without knowledge of any understanding between Mesmer and Rogers, and if the title was complete in McKim, that is, if he had a right to the deed, then he had a right to sell the lands to anyone he pleased, including Rogers, and the purchaser from McKim would receive a good title. Keiser v. Gammon, supra. (2) The appellants complain that "the court erred in excluding the evidence of the justice of the peace." The witness, Mesmer, was the witness of the appellants, they brought him into court, placed him on the witness stand and by their act vouched for his truthfulness, then they ask the privilege of contradicting their own witness. They say they were surprised by the testimony of Mesmer, but nowhere do they make that statement to the trial judge, but give that as their reason to this court now for the first time. Creighton v. Modern Woodmen, 90 Mo.App. 378. The doctrine of waiver and estoppel applies to this case. The evidence clearly shows that Charles McDaniel received the residue from sale in the hands of the trustee and thereby ratified sale and waived any right of redemption. Lanier v. McIntoch, 117 Mo. 508; Bank v. Richmond, 217 S.W. 74.
James T. Blair, Woodson and Ragland, JJ., concur; Graves, P. J., concurs in paragraphs 1, 2 and 3 and the result.
The plaintiffs, who are the widow and heirs at law of Charles S. McDaniel, deceased, prosecute this suit in equity to set aside a sale of eighty acres of land in Lewis County made by the defendant Charles B. Linville, as trustee under a deed of trust executed on the 11th day of December, 1913, by said Charles S. McDaniel, and his wife Angeline, now widow and administratrix of his estate, and to cancel the deed made by said trustee to the defendant, Jesse Rogers. The defendant, Henry C. Sprick, is the beneficiary named in said deed of trust. Lands in Knox County included in the same deed of trust had been sold previously, and are not in issue in any way in this suit.
The suit was instituted in the Circuit Court of Lewis County. The venue was changed to Marion County, and the trial resulted in a judgment for the defendants, and the plaintiffs have taken an appeal therefrom to this court. The sale complained of was made on the 25th day of March, 1918, and the deed sought to be canceled was made and delivered on the following day. In June, 1919, Charles S. McDaniel brought this suit. After his death which occurred in December, 1919, the cause was revived in the names of the present plaintiffs, who filed their petition on the 21st day of April, 1920. Upon the trial the circuit court found against the defendants on the affirmative defenses pleaded by them, but found that plaintiff had failed to sustain the allegations of their petition, and that under the evidence they were not entitled to any relief. The essential statement in the pleadings, necessary to be considered, may be thus summarized:
The plaintiffs alleged that the sale was illegal, irregular, unfair and void for the reason that said land was not sold within one week from the last insertion and publication of the notice of sale, and that by reason thereof, the land sold for an inadequate price, and for much less than its real value. They further alleged that the defendant, Jesse Rogers, who became the purchaser of the land sold by the trustee, had secretly and fraudulently combined with others to suppress bidding, and did prevail upon and cause others to refrain from bidding in order that he, Rogers, might buy said land at less than its real value, and that said Rogers, by reason thereof, did buy the land at an inadequate price, much less than its real value, and much less than it would have brought under a fair and open sale. The plaintiffs further alleged in their petition that Charles S. McDaniel, as soon as he learned of the alleged facts foregoing concerning the sale, notified defendant Rogers that he intended to file suit to set aside the sale; that he thereupon made preparation to file suit, and did file the same as speedily as it was possible to collect evidence and investigate the law. The petition contained an offer to return to Rogers the sum of $ 2,175, which was the amount paid by Rogers to the trustee, and contained a request that the plaintiffs be granted a reasonable time within which to repay the purchase money.
The defendants, Linville and Sprick, filed a joint and several answer, in which they admitted the making of the deed of trust, the sale of the land thereunder, and the relation of the plaintiffs to Charles S. McDaniel, and denied generally the other allegations in the petition. They further alleged that the sale was duly and legally advertised, and that at said sale the lands were purchased by Dr. Walter B. Simpson, who acted in that behalf as agent for Dr. J. V. McKim, and that afterwards, on March 26, 1918, the defendant Rogers purchased said lands from McKim, and that the trustee, at the request of McKim and Simpson, made his deed directly to defendant Rogers. They further alleged that after said sale, and on the 26th day of March, 1918, Charles S. McDaniel, delivered to the trustee certain written orders against the surplus fund in the hands of the trustee arising out of the sale; one being an order in favor of E. C. Thompson for the sum of $ 351, and the other an order in favor of the La Belle Savings Bank for the sum of $ 107.50, which sums the trustee paid as directed; that after doing so there remained in his hands the sum of $ 181.84, surplus money arising from said sale, which, on the 27th day of March, 1918, he paid to said Charles S. McDaniel, who accepted and retained the same. These defendants alleged that thereby Charles S. McDaniel had ratified the acts of the trustee, and had waived all irregularities, if any, in the advertisement and sale of the land, and that these plaintiffs are bound by the acts of Charles S. McDaniel in that behalf. They further alleged that neither Charles S. McDaniel nor the plaintiffs had ever tendered the re-payment of the purchase money or any part thereof.
The defendant Rogers filed an answer in which he set forth all the foregoing matters pleaded by his co-defendants. In addition thereto, he alleged that...
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