New York Store Mercantile Company v. Thurmond

• Decision Date: 15 February 1905
• Citation: 85 S.W. 333,186 Mo. 410
• Parties: NEW YORK STORE MERCANTILE COMPANY v. THURMOND et al., Appellants
• Court: Missouri Supreme Court

85 S.W. 333

186 Mo. 410

NEW YORK STORE MERCANTILE COMPANY v. THURMOND et al., Appellants

Supreme Court of Missouri, First Division

February 15, 1905

Appeal from Dunklin Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed.

J. P Tribble and Ely & Kelso for appellants.

(1) The court erred in permitting witness Keaton to testify, over defendant's objection, to the fact that Thurmond had agreed with him, Keaton, that he would notify him in case Shelton, the beneficiary under the first deed of trust should insist on the collection of his debt. Such evidence was not competent as against either of the other defendants. They were not shown to have been present when this agreement was made. This testimony was not competent for any purpose. Hardwicke v. Hamilton, 121 Mo. 475; Shoe Co. v Casebeer, 53 Mo.App. 640. (2) The court also erred in permitting the letters marked as exhibits A, B, C and D to be read in evidence, for the same reason. They are wholly incompetent and had no tendency to prove or disprove any issue joined in the cause. Further, there was no proof connecting either of the defendants with these letters, even if they had been competent as against Thurmond. Hardwicke v. Hamilton, 121 Mo. 475; Shoe Co. v. Casebeer, 53 Mo.App. 643. (3) The finding and decree of the court is not supported by the pleadings. There are no allegations in the pleadings that defendant Gibson, when he bought the land from Shelton, after the foreclosure sale, acted for the defendant Thurmond; that he bought it with Thurmond's means, or as trustee for him. There is no allegation that Gibson acted for any other person than himself in making the purchase. For this reason the judgment should be reversed as not authorized by the pleadings. Holborn v. Naughton, 60 Mo.App. 100; Needles v. Ford, 167 Mo. 495. Had such allegation been made, there was no evidence whatever to sustain it. (4) The finding and judgment of the court are not supported by the evidence in the cause: (a) There was no evidence of fraud in the sale of the land under the Shelton deed of trust, on the part of any person connected with the transaction. Fraud, when relied upon as a ground of relief, must be conclusively proven, and can never be assumed. Hardwicke v. Hamilton, 121 Mo. 465; Shoe Co. v. Casebeer, 53 Mo.App. 640; Robinson v. Dryden, 118 Mo. 534; Keiser v. Gammon, 95 Mo. 317; Ridge v. Greenwell, 53 Mo.App. 479. (b) And the mere fact that suspicious circumstances may be connected with the sale is not enough; proof of the fraud must be clearly made, it cannot be assumed. Hardwicke v. Hamilton, 121 Mo. 474; Keiser v. Gammon, 95 Mo. 317. (c) When the facts offered in evidence may as well consist with an honest as with a dishonest purpose, the presumption is against the party alleging the fraud. Ridge v. Greenwell, 53 Mo.App. 483; Robinson v. Dryden, 118 Mo. 534. (d) The fact that Thurmond and Gibson are related, and that Thurmond is insolvent, are not sufficient by themselves to establish fraud. Robinson v. Dryden, 118 Mo. 534. (e) It is not sufficient that fraud on the part of Thurmond alone may be shown; if any fraud was in fact shown, it must appear that Gibson not only knew of the fraud, if such fraud has been established, but he must be shown to have participated in it. (f) The fact that the consideration expressed in the deed from Shelton to Gibson is the exact amount paid, and which plaintiff claims to be inadequate, is a circumstance arguing strongly in favor of the bona fides of the transaction. If the transaction had been fraudulent, the consideration expressed in the face of the deed would, in all probabilities, have been equal to, or even greater, than the full cash value of the land. Robinson v. Dryden, 118 Mo. 534. (g) All the testimony in the case shows positively that there was no fraud committed or intended by these parties. While it is true that, in such cases as this, "direct testimony may be overcome by impeaching circumstances," such criminating facts, however, must be of a character to lead a reasonable and fair-minded person to infer a fraudulent and dishonest purpose, in spite of the sworn statements of the witnesses. Ridge v. Greenwall, 53 Mo.App. 470. (5) The court found that Shelton was free from any fraudulent motive in foreclosing his deed of trust and in purchasing the lands at that sale. From this finding plaintiff does not dissent. Such being the case, Shelton had a perfect right to dispose of his purchase to whomsoever would buy it without reference to the fraud of any other person. Such sale will be upheld even if it had been proved that Gibson was guilty of fraud (but no such proof was offered) and the purchaser would take a good title. Shelton's right to sell was subject to no limitations whatever. Funkhouser v. Lay, 78 Mo. 458; Launay v. Poupenez, 35 Mo. 71; Halso v. Halso, 8 Mo. 308; Craig v. Zimmerman, 87 Mo. 475; Crow v. Andrews, 24 Mo.App. 159. (6) Shelton's right to foreclose the first deed of trust accrued on the day his debt became due and default was made in the payment thereof. He then had the right to cause the land to be advertised and sold by the trustee according to the terms of the trust deed. The notice of sale was published in a newspaper as required by the terms of the deed of trust. In the absence of actual fraud this is sufficient. Hardwicke v. Hamilton, 121 Mo. 475.

C. L. Keaton for respondent.

(1) The judgment and decree of the court adjudging that the land described in plaintiff's mortgage was subject to the lien of the mortgage notwithstanding the purchase of Gibson, was self-enforcing, and the foreclosure under the deed of trust or mortgage was the proper execution of the judgment and decree. State ex rel. v. Klein, 137 Mo. 679; Aull v. Trust Co., 149 Mo. 15; Medart v. Baker Mfg. Co., 51 Mo.App. 21. (2) The appeal should be dismissed on affidavit of satisfaction of judgment. Waddingham v. Waddingham, 27 Mo.App. 609. (3) There was no supersedeas when the land was sold. The appeal bond would act as a supersedeas only after the approval of the appeal bond. R. S. 1899, sec. 809; State ex rel. v. Dillon, 98 Mo. 93. (4) The simple filing of a motion for new trial did not stay judgment. R. S. 1899, sec. 3151; Ex parte Craig, 130 Mo. 594; Ex parte Millett, 37 Mo.App. 82; State ex rel. v. Field, 37 Mo.App. 99. (5) Defendants fixed the amount of the bond at their peril, and it does not supersede execution. R. S. 1899, sec. 809; State ex rel. v. Dillon, 31 Mo.App. 535; State ex rel. v. Woodson, 28 Mo. 513; Thomas v. Ins. Co., 89 Mo.App. 15. (6) This appeal should be dismissed for failure of appellants to make and file abstract of the record and especially of the evidence. The bill of exceptions is simply printed in full and not abstracted at all. Brand v. Cannon, 118 Mo. 598; Whitehead v. Railroad, 176 Mo. 480; rule 13 of this court. (7) There is no merit in the objection to the evidence of witness Keaton, testifying to an independent agreement between him as against defendant Thurmond. The evidence is perfectly competent; besides, there was no valid objection made at the time. Short v. Taylor, 137 Mo. 528; Roe v. Bank of Versailles, 167 Mo. 427. (8) "Collusion or fraud is seldom susceptible of positive or direct proof, and in determining whether or not it exists the chancellor has the right and it is his duty to consider the entire surroundings of the transaction, the relation and conduct of the parties; and then make such reasonable inferences as all the facts warrant." New. Eng. L. & T. Co. v. Browne, 177 Mo. 422. (9) As to the third point of defendants' brief, it is clearly without merit. Witness Pool clearly shows from the letters of the parties, Thurmond and Gibson, that Gibson was simply managing and renting the property to get his money back that he had paid out to Shelton, and then the land was to be turned over or back to defendant Thurmond, shorn of all liens or liabilities from defendant Thurmond's debts, and defendant Gibson says, himself, that he proposed to turn the lot back to Thurmond or allow him to redeem it and they were trying to sell the land and said Pool says that he had been offered a thousand dollars in cash for it, and it is very clear that if he had sold it for a thousand dollars Gibson would have gotten about four hundred dollars and Thurmond about six hundred and plaintiff nothing. New England L. & T. Co. v. Browne, 177 Mo. 412.

OPINION

MARSHALL, J.

This is a bill in equity to set aside for fraud a deed from defendant Jones, as trustee, to defendant Shelton, and also a deed from said Shelton to defendant Gibson, to the north half of the northwest quarter of section twenty, in township sixteen, range seven, in Dunklin county, and to have a deed of trust from defendant Thurmond to the plaintiff, on said land, and other lands, declared a lien on said land, superior to defendant's claim thereto, and to have plaintiff's deed of trust aforesaid foreclosed and the land sold to satisfy the plaintiff's lien.

The petition alleges that on December 14, 1896, the defendant Thurmond was the owner of the land, and that on that day he gave a deed of trust thereon to defendant Jones, as trustee to secure to defendant Shelton a note for three hundred and seventy-five dollars, which deed was duly recorded in said Dunklin county; that afterwards on September 25, 1897, said Thurmond executed to plaintiff a second deed of trust on the land, to secure a note for $ 463.73, which was also duly recorded; that at the time Thurmond gave plaintiff said deed of trust, he promised to protect plaintiff's interest by paying off the first deed of trust, and in the event Shelton should press the first deed of trust and he, Thurmond, was unable to pay it, he would notify the plaintiff so that it could protect itself in the premises and...