Reel v. Ewing

• Decision Date: 31 October 1879
• Citation: 71 Mo. 17
• Parties: REEL, Appellant, v. EWING.
• Court: Missouri Supreme Court

71 Mo. 17

REEL, Appellant,

v.EWING.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

E. T. Farish for appellant.

Noble & Orrick for respondents.

NAPTON, J.

The petition in this case was filed on the 16th day of August, 1875. It charges that the defendants made their deed of trust to Robert A. Bakewell, of date May 30th, 1871, conveying a certain piece of land in “Prairie Place” on St. Charles road, near the city of St. Louis, in trust to secure the payment of seven promissory notes: One, a principal note for $8,000 at three years; and the others, interest notes for $400 each, payable respectively in six, twelve, eighteen, twenty-four, thirty and thirty-six months after date; that the notes maturing at eighteen and twenty-four months becoming due and remaining unpaid, the said trustee, at the request of plaintiff, did advertise said property for sale on the 12th day of July, 1873; that very shortly before said day of sale the defendants, Ewing and Eoff, represented to said trustee, as agent of plaintiff, and to plaintiff, that said property was worth much more than the amount of said debt, and that they were extremely desirous to avoid a sacrifice of the same, and did earnestly entreat said plaintiff and said Bakewell, not to sacrifice the same by a forced sale, but to indulge said defendants for a reasonable time, and did then promise said John H. Reel, that if he, said Reel, would, at the said sale, purchase the said property for the amount due on said notes, and interest and costs, they, the said defendants, would, in thirty days from date of said sale, pay to said plaintiff the full amount of said notes then due, and interest and costs on his executing to them a quit-claim deed for said property, or causing a deed to be executed by said trustee to them of the same; that said John H. Reel, the plaintiff, fully believing the representations of said defendants in this behalf, and taking their statements to be true as to the value of said property, which they represented to be largely in excess of said debt, and being desirous not to damage them or sacrifice their property, but merely to secure the payment of his said debt, did, on the faith of the aforesaid representation of said Ewing and Eoff, direct said trustee to strike off said property at said sale to him, the said plaintiff, at the amount of said debt and costs, and to execute no deed for the same until the expiration of said thirty days; that, thereupon, the said trustee, at the request of said Reel and said defendants, and on the faith of the said promise and agreement of said defendants to said plaintiff, and, for the purpose of carrying out the same, did, on the day of said sale, strike off said property to said plaintiff at the price and sum of $9,100, being the amount then due on account of said debt and interest ($8,921) and $179 the estimated expenses of said trust; that at the expiration of thirty days the said defendants positively refused to carry out their said agreement and promise, and declined to pay the said sum and to receive said property, whereupon the said trustee who had already executed and acknowledged a deed for the same, with the name of the grantee in blank, did, on the 12th day of August, 1873, deliver said deed to said John H. Reel, who caused the blank therein to be filled up with his own name, and recorded the same.

Plaintiff says that, relying upon the false representations of defendants, he did always, until the defendants refused to carry out their agreement as aforesaid, believe said property to be worth much more than the amount of said debt; that he was completely deceived and thrown off his guard by the false and fraudulent representations of defendants in this respect, and by their false and fraudulent pretense that they were afraid to have the property sacrificed at a forced sale, and by their entreaties to him to save the property to them by purchasing it as aforesaid and holding the same as aforesaid for thirty days for them; and that but for said false and fraudulent representations and pretenses which were made, as plaintiff avers, by defendants, for the purpose of defrauding plaintiff and leading him to bid at said sale the amount of said debt, he would not have purchased said property at said sale; that there was no competition and no bidding whatever at said sale, said defendants purposely absenting themselves therefrom for the purpose of carrying out their fraudulent purpose to shove off said property on plaintiff for their debt to him, and in accordance with their agreement with plaintiff that he should purchase the same.

Plaintiff says that on the day of said sale the said property was not worth more than $5,000, and is not now worth that sum; that he made said loan on the faith of defendants' representations that the same was worth largely over $10,000, which defendants well knew to be false, and that relying upon the said representations of defendants, and fully believing the same, he did at said sale purchase said property to hold in trust for them, and not otherwise, fully believing that upon the expiration of said thirty days defendants would pay to plaintiff said debt, interest and costs.

Plaintiff says that said notes of defendants, to-wit: said note for $8,000 and the ones last maturing of said interest notes, are still in the hands of plaintiff unsatisfied; that in pursuance of said understanding with, and direction of, defendants, and only because thereof, plaintiff bid in said property, and now and ever since has held the same in trust for said defendants, and is ready and willing, and has always been ready and desirous to convey the same to defendants upon their compliance with their agreement as aforesaid, and has offered so to do; but defendants have refused and still refuse to accept said property and pay the bid so made for defendants by plaintiff. And plaintiff now offers to convey to defendants the property acquired by said sale, by good and sufficient deed, upon their compliance with their promise and undertaking as aforesaid. Wherefore plaintiff prays that defendants be adjudged and decreed to pay plaintiff said sum of $9,100, with interest from the 12th day of July, 1873, with costs, and for such other and further relief in the premises as may be equitable and just.

The answer of defendants is a specific denial of each allegation in the petition.

There was a judgment for plaintiff in the circuit court, which judgment was reversed in the court of appeals, and the case is brought here by the original plaintiff, Reel.

To a correct understanding of the merits of this case, a statement at least of the substance of the evidence is necessary, and for this purpose, Judge Bakewell being the principal witness for plaintiff, and in fact the plaintiff's agent or attorney in the transaction complained of, we copy the printed condensation of his testimony, made by the plaintiff's attorney, Mr. Farish, the partner of Judge Bakewell until his transfer to the bench.

Judge Bakewell testifies that whilst the advertisement was in the paper, and before the day of sale, defendant Eoff came into his office and stated that this was a very hard case upon himself and Mr. Ewing, that they did not want the property sacrificed, that the property was valuable, and that they did not want to have it sold in that way without having time to look around and secure themselves by protecting the property. He asked him to act as his friend in this matter, and see that nothing of that kind was done. Bakewell then told Eoff that as far as that went it was unnecessary for him to be present at the sale at all; that if they desired it to be so done the property should be bid off for the amount of the debt, costs and interest. Eoff then said that if Bakewell would do that, Ewing and Eoff would endeavor to raise the money and let him, Bakewell, have it, and take the property within a month, that is, pay the amount within a month if that was done. The impression given Judge Bakewell by Eoff was, that here was valuable property which largely exceeded the loan, that they wanted to have time to arrange the matter, and that it was understood, as a matter of favor to defendants, that they were to have a month, within which time they were to raise the money and pay Bakewell. In pursuance of this arrangement, Judge Bakewell having every confidence, and imposing reliance upon Eoff, whom he had known in former years as a neighbor and with whom he had been socially intimate. employed an auctioneer, Mr. Papin; told him of the arrangement, instructed him as to the amount to bid, never attended the sale. There was no one present at the sale but Papin and the two defendants, no biders and the property was bid in by Papin, in the name of plaintiff, for the amount agreed upon.

But for the understanding Bakewell had with Eoff, he would have attended the sale and protected plaintiff's interests, and bid it in as cheaply as he could. Eoff wanted Bakewell to act as his friend, for him and Mr. Ewing in this matter, and see that the property was not sacrificed, and to give them a month's time in which to raise the money; in which to do whatever they wanted to do, raise the money to pay Reel; Reel wanted the money. I understood from what they said that the property was worth a great deal more than the loan, that they had been taken a little short about the matter, but they would look around, and make another loan, and raise the money in some way. Bakewell says he knew nothing about the worth of the property, but the impression made on his mind by Eoff was that the property was worth a great deal more...