Morse v. Bates
| Decision Date | 27 April 1903 |
| Citation | 74 S.W. 439,99 Mo.App. 560 |
| Parties | ERASTUS L. MORSE, Respondent, v. ALLEN M. BATES, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clay Circuit Court.--Hon. J. W. Alexander, Judge.
AFFIRMED.
Judgment affirmed.
Martin E. Lawson and Harris L. Moore for appellant.
(1) An unpaid bid at a sheriff's sale under judgment, without a deed, confers no title on bidder, at least in Missouri. Strain v. Murphy, 49 Mo. 337; Leach v. Koenig, 55 Mo. 451; Simmons v. Cook, 109 Ga. 553; Alexander v. Merry, 9 Mo. 514; Askew v Ebborts, 22 Cal. 263. (2) Defendant had the legal title and plaintiff's interest if any, was equitable; this created an equitable trust, and plaintiff can not mix legal and equitable causes of action under our practice--can not sue at law to enforce an equitable claim. Foster v. Mill Co., 16 Mo.App. 150; 92 Mo. 79; Richardson v Means, 22 Mo. 495; Gale v. Mensing, 20 Mo. 469; Myers v. Hale, 17 Mo.App. 204; 27 Encyclopedia of Law (1 Ed.), page 271, under head of "Jurisdiction," a list of cases cited; Rutherford v. Williams, 42 Mo. 18; Maguire v Tyler, 47 Mo. 115; Myers v. Field, 37 Mo. 434.
Simrall & Trimble and Sandusky & Sandusky for respondent.
(1) Elizabeth C. Wyman and George J. Wyman, through John Lewis, arranged that the purchaser should have both the sheriff's deed and a quitclaim from George J. Wyman; and after the sale she gave an order on the sheriff in favor of Hardwicke for the surplus. After so doing neither of them could question the validity of the sheriff's sale. Austin v. Loring, 63 Mo. 19. (2) Though respondent had no sheriff's deed to the lots, and no legal title, yet he had a beneficial interest in the lots to the extent of his payment, which would have ripened into a legal title by making a small payment, which he had the right to make and intended to make, and to secure his sheriff's deed and quitclaim. He had an inchoate title. Freeman on Ex. (1 Ed.), sec. 323. (3) The appellant knowingly and willfully committed a wrongful act to the direct injury of respondent, for which an action must lie. As respondent can not follow the property, and can not secure title by completing his bid, he must have recourse against the person who committed the injury. 2 Pomeroy's Eq. Jur. (1 Ed.), sec. 918.
--This is an action for damages alleged to be the result of defendant's fraud in the conveyance of real estate. The plaintiff recovered judgment in the trial court for $ 387.92.
The facts necessary to state for an understanding of our decision are, that Mrs. Elizabeth C. Wyman, besides her home, owned the unoccupied property out of which this controversy arose and there was a judgment against her which was a lien upon it. To defeat the collection of this judgment she conveyed this property to her son, George Wyman, without consideration and without his knowledge. This deed was recorded. Her home property was sold at sheriff's sale under this judgment to Mr. Hardwicke for a nominal sum. Afterwards, this property was levied upon and advertised to be sold by the sheriff under the same judgment. The record title being in George, it was feared it would sell at a sacrifice. From such consideration a friend arranged at the sheriff's sale that the purchaser should have a quitclaim deed from George in addition to the sheriff's deed, and that Hardwicke would convey back to Mrs. Wyman her home property if this property brought enough to pay the judgment. The plaintiff became the purchaser under this arrangement for $ 480. This being sufficient to satisfy the judgment, Hardwicke conveyed the home property to Mrs. Wyman. Plaintiff paid the sheriff $ 350 on his bid, and $ 50 afterwards. He also paid $ 23 to George, leaving $ 57 unpaid. Hardwicke (under an order from Mrs. Wyman) and George each claimed the surplus of plaintiff's bid over the amount of the judgment. Plaintiff wanted a deed from the sheriff and the quitclaim from George when he should pay the balance of his bid, but on account of the controversy about who was to have the money the matter was delayed along for some six years, thus leaving the record title to the property in question in George. In this situation, defendant, after having the whole matter explained to him by George, obtained from the latter a quitclaim deed by paying to George the $ 57 so in dispute. Defendant, a few days afterwards, wrongfully and fraudulently, as charged by plaintiff, sold the property to the Henry Pyle Realty Company for $ 375, without disclosing what he learned from George, and that company being ignorant of the facts here stated, and relying on the record title in George. The company, within a few months, sold the property for $ 650. No point is made as to the amount of the judgment, nor the process of ascertaining that amount, nor as to the measure of plaintiff...
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