Miltenberger v. Morrison

• Decision Date: 31 October 1866
• Citation: 39 Mo. 71
• Parties: EUGENE MILTENBERGER, Plaintiff in Error, v. PATIENCE C. MORRISON, PETER WONDERLY, SARAH WONDERLY, HIS WIFE, AND ALEX J. P. GARESCHE, HER TRUSTEE, Defendants in Error.
• Court: Missouri Supreme Court

39 Mo. 71

EUGENE MILTENBERGER, Plaintiff in Error,

v.PATIENCE C. MORRISON, PETER WONDERLY, SARAH WONDERLY, HIS WIFE, AND ALEX J. P. GARESCHE, HER TRUSTEE, Defendants in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to St. Louis Land Court.

Miltenberger was a judgment creditor of Wonderly, and had procured a sheriff's deed in an attachment suit against him for the land respecting which this controversy arose, which was composed of lots 15 and 16 in block 896 of Lucas & Hunt's addition to the city of St. Louis. These lots were each improved, and in the year 1860-61 yielded respectively the rent of $900 and $800 per annum. The lots were encumbered at the time by deeds of trust in favor of Lucas & Hunt for about $1300 each, becoming due in 1861 & 1862; they were also encumbered by another deed in favor of one Lewis for two notes each for $1,000, due December, 1860, and December, 1861, respectively. Wonderly conveyed lot 16, with the house thereon, to P. C. Morrison, and conveyed the other lot to trustees for his wife, he being insolvent. The encumbrances remained unpaid, and plaintiff commenced suit by attachment against Wonderly. It was alleged that Wonderly and Morrison agreed that Morrison should buy up the outstanding notes, purchase the said houses and lots at a sale to be made under the deeds securing the debts, and hold lot No. 16 for her own use and lot 15 for the use of Wonderly, he repaying to her the debts and interest thereon which she should so purchase; that, accordingly, said Morrison purchased said debts, and she and Wonderly colluding caused a sale to be made under the deeds of trust, at which she became the purchaser, paying the sum of $50 for lot 15 and $150 for lot 16. This sale was made on June 1, 1861. The plaintiff claimed that he, as attaching creditor of Wonderly and purchaser of his interest in this lot No. 15, was entitled to redeem the same from Mrs. Morrison. It was claimed that the rents and profits of the property had nearly or quite extinguished the sum for which Morrison held it.

Morrison denied that any such agreement was made with Wonderly, and denied collusion with Wonderly to purchase the property (lot 15) for him, at a low rate, for the purpose of defrauding his creditors. Wonderly, who was made defendant, confessed the bill.

At the trial, the record of the attachment suit against Wonderly in favor of E. Miltenberger & Co., and the deed of the sheriff to him for lot 15, were put in evidence; also, the deeds of trust above mentioned, and the sale, under the deed to Lewis' trustee, of the lots on 1st June, 1861. It was also shown that Morrison, on January 24, 1862, at a sale made by Lucas' trustee, became the purchaser of the same lots over again, paying for the lot No. 16, $105, and for lot No. 26, $2,550, and received the trustee's deed therefor.

Evidence was given tending to prove that the agreement stated in the petition had really been made between Morrison and Wonderly, and that the purchase of the lots by her as stated had taken place in conformity with it.

The plaintiff called as a witness Peter Wonderly, to whose admission to testify the defendant Morrison objected, on the ground that he was a party to the suit. The court sustained the objection.

The court made a decree for defendants, dismissing the bill of plaintiff.

Gantt and Holliday, for plaintiff in error.

I. The rejection of Wonderly as a witness was error. As a party defendant he was a competent witness at the instance of plaintiff.

II. But, independent of the testimony of Wonderly, it is clear by the evidence that such a contract as was set up in the petition was made between Morrison and Wonderly, and that the lot 15 was purchased by her for the use of Wonderly, he being subject to the condition of redeeming it by paying off all the outlay to which she was put on account of it, and ten per cent. interest. If this be established, it results that the only remaining question is whether this constituted Wonderly the owner of a valuable interest in the lot on which his creditor was entitled to seize; and on this point plaintiff in error submits--

III. That such an agreement between Wonderly and Morrison constitutes her trustee for Wonderly for the excess of the value of this lot over the money paid by Mrs. Morrison on account of the encumbrances thereon.

This proposition is established by numerous authorities. If a party enters into an agreement for the purpose of preventing free competition at a sale by sheriff or trustee, and himself becomes the purchaser at such sale, he is merely a trustee for those of the creditors who are entitled to call the sale in question; that is, who have assailed the fraudulent arrangement and acquired a title which only requires the removal of the obstacle created by that arrangement--Jones v. Caswell, 3 Johns. Cas. 29; Doolen v. Ward, 6 Johns. 194; Wilbur v. How, 8 Johns. 444; 25 Me. 414; Gardner v. Morse, 25 Me. 140: Thompson v. Davies, 13 Johns. 113; Burbane v. Adams, 4 Comst. (N. Y.) 129; Hawley v. Cranmer, 4 Cow. 717; Hamilton v. Hamilton, 2 Rich. Eq. 355; Boxwell v. Christie, Cowp. 395; 5 D. & E. (Term R.) 642.

These cases establish the illegality of such an arrangement as Mrs. Morrison made; but by means of such an arrangement she became the purchaser of the property at an undue valuation; by means of this arrangement other bidders were deterred or dissuaded from competing with her.

Lackland, Cline & Jamison, for defendants in error.

I. The evidence of Peter Wonderly was properly rejected. It was shown by the evidence that the suit was prosecuted for his immediate benefit, and he was also incompetent as a witness from the fact that his wife was a party to the suit; hence he could not be a witness either for or against her--R. C. 1855, p. 1577, § 6, subdiv. 1 & 5.

II. Whatever interest Wonderly had in the property in question at the time plaintiff instituted his suit by attachment against Wonderly became extinguished by the sales under the deeds of trust to Mrs. Morrison; so that if the plaintiff is subrogated to any rights of Wonderly in reference to this property, it can be to such only as Wonderly acquired by virtue of the agreement with Mrs. Morrison which was made subsequent to the plaintiff's attachment--Crocker v. Pierce, 31 Me. 183.

III. And if there was any binding agreement between Mrs. Morrison and Wonderly, it constituted a privilege of re-purchase and not a mortgage. There was in the transaction nothing upon which a court of equity can fasten, so as to be enabled to call that a mortgage which if anything is in terms apparently a contract for re-purchase--1 Hill. Mort. 64, 69; Goodman v. Grierson, 2 Hall & B. 279.

IV. If, then, the transaction between Morrison and Wonderly constituted a conditional sale and not a mortgage, then the interest of Wonderly was not one to which plaintiff could be substituted by virtue of the levy under the execution. It was a mere chose in action, and not an interest in land subject to levy on execution--Brant v. Robertson, 16 Mo. 149; Van Ness v. Hyatt, 13 Pet. 300-1.

V. Mrs. Morrison derived her title to the property in question from the trustees in the deed of trust at a public sale at auction, which had been duly advertised and all the world invited to become competitors at the sale, and so that the plaintiff could have saved the property to abide the result of his attachment suit had he desired to do so; and courts will hold purchasers at such sales to be trustees for other parties only in cases of absolute fraud, or of clearly defined specific agreements--Kennedy v. Keating, 34 Mo. 25; Chospenning's Appeal, 32 Pa. 315; Prevost v. Gratz, Pet. C. C. 364, 378; Fisk v. Sarber, 6 W. & S. 18; Sheldon v. Johnson, 13 Johns. 220; Jackson v. Woolsy, 11 Johns. 446.

VI. So far as the transaction and talk between those acting in behalf of Wonderly and Morrison proves any agreement, it seems to be simply that Mrs. Morrison through her agent was to purchase the property at the sale for the protection of her own interest; and all interest thereafter which Wonderly was to have in the property was to depend solely on the generosity or kind feeling of Mrs. Morrison. Such contracts, in the absence of fraud, equity will never lend its aid to enforce--Ld. Walpole v. Oxford, 3 Vesey, 420-1; Bro. Stat. Frauds, § 429; Montacute v. Maxwell, 1 P. Wms. 619.

VII. The evidence of the alleged contract or agreement in this case is at best uncertain, contradictory, and variant from the allegations of the petition; and a court of equity will not lend its aid for the specific performance of such a contract, especially if they be within the statute of frauds--2 Sto. Eq. §§ 751, 764, 767, 769; Chainley v. Hansbury, 13 Pet. 21; German v. Machin, 6 Paige, 292; Colson v. Thompson, 2 Wheat. 341; Lord Walpole v. Oxford, 3 Vesey, 420; Rankin v. Simpson, 19 Pa. 474; Goodwin v. Lyon, 4 Porter, 305-6.

VIII. The plaintiff is further precluded from recovering in this case, as the contract or agreement under which he claims is clearly within the statute of frauds; and this is a defence that the defendant can make under a general denial of...