Ralphsnyder v. Shaw

• Citation: 45 W.Va. 680,31 S.E. 953
• Court: Supreme Court of West Virginia
• Decision Date: 14 December 1898
• Parties: RALPHSNYDER . v. SHAW et al.

31 S.E. 953
45 W.Va. 680

RALPHSNYDER .
v.
SHAW et al.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1898.

Contracts—Public Policy—Enforcement—Sale of Realty—Statute of Frauds.

1. Where a trustee is proceeding to make sale of real estate at public auction, and R. and B., after competing as bidders for some time, enter into a verbal agreement that R. shall desist from bidding, and B. should proceed as advised from time to time, and, if B. became the purchaser, he was to divide the property purchased with R., such an agreement is a fraud upon the vendor, and, if B. refuses to comply with the agreement, it cannot be enforced by R.

2. A contract of this character is void, as being contrary to public policy.

3. Where a sale of real estate is made by a trustee, and no memorandum is made in writing by the trustee, such sale is void under the statute of frauds.

(Syllabus by the Court.)

Appeal from circuit court Preston county; J. H. Holt, Judge.

Bill by J. C. Ralphsnyder against Leroy Shaw and another. Decree for plaintiff, and defendants appeal. Reversed.

P. J. Crogan and James A. Brown, for appellants.

R. W. Monroe and C. P. Guard, for appellee.

ENGLISH, J. On the first Monday of May, 1897, J. C. Ralphsnyder filed his bill in the circuit court of Preston county against Leroy Shaw and Henry Clay Hyde, trustees, William G. Brown, and James A. Brown, basing his claim for relief on the following facts, to wit: That said James Brown, on the 1st of March, 1897, made an assignment under a deed of trust to said Hyde and Shaw, trustees, purporting to convey all his estate, real and personal, in trust to said trustees for the benefit of his numerous creditors; that said trustees advertised said property for sale on the 5th of April, 1897, and in pursuance of said advertisement said trustees, on said 5th of April, proceeded to sell said property, Leroy Shaw acting as auctioneer or crier of

[31 S.E. 954]

the property at said sale, and. not having completed sale on the 5th, the same was adjourned until April 6th, said Shaw continuing to act as auctioneer, and said Hyde as clerk; that, after many articles had been offered and sold, said trustee offered certain portions of the real estate in parcels or lots, and also the brick dwelling house in the town of Kingwood, together with the lawn surrounding the same, and the garden and orchard adjacent thereto, and the pasture field and wheat field contiguous and adjacent thereto, with the understanding that the aggregate price of said real estate by lots and parcels should bring as much as It brought as a whole; that said trustee offered said real estate first in parcels, and it brought the aggregate price of $4,453; afterwards it was offered by them as a whole, and brought $4,-475. The plaintiff further alleged that he had an arrangement with the defendant W. G. Brown by which he and Brown were to buy said property jointly; that said Brown was to do the bidding, and buy the property in, and plaintiff was to stand by for the purpose of indicating to said Brown how much to bid on said property, and Brown was to stop when so directed by plaintiff; that under this agreement said Brown bid the property up to $4,475, which bid was acquiesced in by plaintiff, and the property was knocked down to Brown; that he notified said trustees that the sale was made to himself and Brown jointly, and that he was ready to comply on his part with the terms of sale, and that he would see Brown, and fix it up; that he did call on Brown, and notified him that he was ready to comply with the terms of sale, and suggested that they do so at once; that said Brown made some excuse, and asked for delay, and said they could fix it next morning; that he saw Brown...