McDaniel v. Sprick

• Decision Date: 05 March 1923
• Docket Number: No. 23153.,23153.
• Parties: McDANIEL et al. v. SPRICK et al.
• Court: Missouri Supreme Court

249 S.W. 611

297 Mo. 424

McDANIEL et al. v. SPRICK et al.

No. 23153.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit Court, Marion County; Charles T. Hays, Judge.

Suit by Angeline P. McDaniel and others against Henry C. Sprick and others. Decree for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

Harry S. Rouse, of Cantor, and Stewart & Stewart, of Edina, for appellants.

James C. Dorian, of Edina, for respondents.

Statement

LINDSAY, C.

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 80 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 previousiy, 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 die 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 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 repayment 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 codefendants. In addition thereto, he alleged that after the receipt by him of the deed from the trustee, Charles S. McDaniel surrendered to him full possession of the lands, and made no claim of any right to redeem the same, or that the sale thereof was irregular, fraudulent, or void. He stated that he had been in possession of the land since March, 1918, and that said land at the time of the sale was not worth more than the sum of $2,687.50. This was the amount paid by him to McKim for the land. He alleged that he had made valuable and lasting improvements on the land, setting forth the amount, and character and cost of these in detail; and that he had paid all taxes against the land, including taxes in arrears at the time of the sale. He alleged that on account of improvements placed by him on the land, and also by the general advance in prices of farm lands in that vicinity, the land had advanced in value since the date of sale, and that on account of the lathes and delay of Charles S. McDaniel and of plaintiffs, in attempting to redeem said land, it would now be inequitable and unjust to permit them to do so. He denied entering into any secret agreement, or fraudulent conspiracy, to suppress bidding.

The plaintiffs filed their motion to strike out of the answers all allegations concerning the orders given Charles S. McDaniel against the surplus fund in the hands of the trustee, and the acceptance of the residue of $181.84 by him. Replying to the separate answer of the defendant Rogers, plaintiffs denied the new matter therein, and alleged that he had been in full possession of the land, and had received all the rents and profits therefrom for the crops of the years 1918, 1919, 1920; asserted that the reasonable cash rental value of the land was $6 per acre, per annum, and that defendant Rogers was indebted to them in the sum of $1,480 for the use and occupation of the land, and asked judgment for that sum against him, and for the relief prayed for in their petition as well.

As before stated, the circuit court found against the defendants on the affirmative defenses pleaded in the answer. These were ratification of the sale by Charles S. McDaniel, and lathes in repudiating the validity of the sale, and in bringing suit to set it aside and to redeem. It was admitted at the trial that Charles S. McDaniel gave the orders, and received the residue of money making up the amount of surplus in the hands of the trustee. But, manifestly, and as the finding of the court necessarily implies, McDaniel was not at the time aware of the conduct of Rogers on the day of the sale, which became the basis of the complaint subsequently made, and did not unreasonably delay the bringing of this suit. With these elements of defense thus eliminated, the case stands here for determination upon the allegations of the petition, the general denial thereof by the defendants, and the evidence found in the record. The essential grounds of relief stated are:

First, that the sale was not had within one week from the last insertion and publication of the notice thereof; second, that defendant Jesse Rogers sought and prevailed upon others to refrain from bidding for the land, and also that by reason of the foregoing, the land was caused to be sold at an inadequate price, and did in fact sell for a price much less than its real value. Objection is made by defendants the abstract does not sufficiently show the filing of the bill of exceptions. This and the contention of plaintiffs are to be reviewed in the light of the evidence which will be stated and considered in connection with the subject to which it relates.

Opinion.

The defendants urge in their brief that no bill of exceptions was ever filed in this cause, and that the nunc pro tunc order of the judge of Marion county circuit court made on the 25th day of November, 1922, requiring the clerk of that court to file the bill of exceptions as of the 7th day of April, 1922, is a nullity, because not based on sufficient memoranda to authorize the court to make said order, and that there is nothing therefore before this court for review, and that there is no record that the bill of exceptions was ever filed. The evidence upon which the court made the nunc pro tune order is not before us. The abstract contains sufficient recital of the timely filing of the bill of exceptions under rule 31 (228 S. W. x). Were this otherwise, the objections come too late, under rule 11 (228 S. W. vii).

The cause was set for hearing in this court on the 2d day of January, 1923. Appellants' abstract and brief were served upon respondents on the...