Ralphsnyder v. Shaw et al.
| Decision Date | 15 September 1898 |
| Court | West Virginia Supreme Court |
| Parties | Ralphsnyder v. Shaw et al. |
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 R. (p. 685).
A contract of this character is void, as being contrary to public polciy. (p. 686).
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. (p. 686).
Appeal from Circuit Court, Preston County.
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.
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, trustee, 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 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 King wood, 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 four thousand four hundred and fifty-three dollars; afterwards it was offered by them as a whole, and brought four thousand four hundred and seventy-five dollars. 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 four thousand four hundred and seventy-five dollars, which bid was acquiesced in by plaintiff, and the property was knocked down to Brown; that he notified the 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 next morning, who stated then that he had concluded not to comply with the terms of sale, but that, if plaintiff desired to do so, and wanted all the property, he was perfectly satisfied; that he (plaintiff) went at once to said trustees, and notified them of the facts, and of his intention to take the property himself, and of his readiness to comply with the terms of sale, but the trustees refused to permit him so to do; and he charged that said trustees were colluding and combining with the defendant W. G.Brown to cheat and defraud him, and wholly deprive him of the benefit of his purchase, and that they were proposing to re-offer the property for sale, and had given notice that on the 12th of April, 1897, they would again offer said property for sale at public auction, without regard to the rights of plaintiff; that said sale to Brown was fairly made, and for a sufficient price, and was, in effect, a sale to complainant after Brown voluntarily retired therefrom, and notified the trustees that he would not comply; that he had a right to have the sale made to him by said trustees specifically enforced, and he tendered his notes with good security, in accordance with the terms of sale, and prayed that Shaw and Hyde, trustees, be enjoined from selling or offering said brick dwelling house, the lot, or any other property sold as aforesaid to W. G. Brown for complainant, and that said trustees might be required to convey said property to him.
The defendant W. G. Brown answered the plaintiff's bill, and alleged that the allegations in said bill relating directly to the actions, conduct, and alleged understandings and agreements of the respondent with the plaintiff by which they were to buy said property (meaning the brick house and lands and lots contiguous thereto) jointly and that by said contract and agreement respondent was to do the bidding and buy the property in, and the plaintiff to stand by for the purpose of indicating to respondent how much to bid on said property, and that he was to stop bidding when so directed, and under said arrangement the property was knocked down at four thousand four hundred and seventy-five dollars to them were not true; that he bid for himself only, and the property was knocked down to him at four thousand, four hundred and seventy-five dollars; that the sale was made to him alone, and he denied he had any such arrangement before or aftersaid sale, that he and plaintiff were to hold this property jointly, or at any time asked for delay or time to consider the settlement of said joint bid or ownership, or giving joint notes with the plaintiff for said property, as he never had any such arrangement; that while respondent wasbidding on said property he was approached by plaintiff, who said to him at the time respondent had a bid of three thousand five hundred dollars on the brick house, which was then being offered separately. "There is no use of us bidding against each other; can't we make some arrangement?" or words of like import, and respondent replied that, if he got the property, then no doubt he and plaintiff could deal; that thereupon, there being no higher bid, said brick house was knocked down to respondent for three thousand five hundred dollars, but only conditionally, as said house was then to be offered with the adjoining lands, and, if they brought more as a whole then respondent was not to have said brick house at his bid of three thousand five hundred dollars, and thereupon, said property being offered as a whole, he bought it for four thousand four hundred aud seventy-five dollars. On the following evening plaintiff came to respondent's office, and set up a claim of partnership or joint ownership in said property, which respondent denied, but told plaintiff he might have the property at his bid if he would step in and comply with the terms of sale. Plaintiff replied he would let respondent know the following morning. This was on Wednesday evening, and respondent saw no more of plaintiff until the next Saturday morning, when he came again to the office, and proposed to comply with the terms of said sale. On the preceding Thursday, the plaintiff not having come in as he agreed to do, respondent notified the trustees that he would...
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