Russell v. Geyer

• Decision Date: 30 June 1836
• Parties: RUSSELL v. GEYER AND OTHERS.
• Court: Missouri Supreme Court

4 Mo. 384

RUSSELL

v.GEYER AND OTHERS.

Supreme Court of Missouri.

June Term, 1836.

On the 13th July, 1827, Russell filed his bill against the four first defendants; and, at the next November term of the Circuit Court, he filed an amended bill, making Lindell a party; before hearing, the bill was dismissed as to Collier--after hearing, the bill of the complainant was dismissed, and, to reverse the decree of the Circuit Court, the complainant comes into this court.

The bill charges that Geyer being seized in fee of two lots of ground, situated in the city of St. Louis, and being indebted to one Rufus Easton, in the sum of two thousand, six hundred and sixty-one dollars and ninety-nine cents, upon three several promissory notes; made to said Easton a mortgage deed for the said lots of ground, on the 27th day of September, A. D., 1821, to secure to said Easton the payment of the principal sum of money due on said notes, as well as the interest; and that on the 4th day of January, 1825, Easton in consideration of the sum of eleven hundred and ten dollars, transferred to the complainant all his interest in said mortgage and notes. On the 10th June, 1822, the said lots were sold to said Wash, at sheriff's sale, for the sum of one hundred and ten dollars and fifty cents. At the time the lot was sold to Wash there were executions in the hands of the sheriff issued on seven judgments, each of which had been levied on the property sold: 1st, Bryan and Bryan v. Henry S. Geyer, confessed in vacation before the clerk, on the 3rd January, 1821, for $755 78; and on the 13th March, 1822, ordered by the court to be entered as a judgment of the court of the April term, 1821. 2nd, Dent v. Geyer, confessed in vacation, 3rd January, 1821, for $420, ordered by the court on 13th March, 1822, to be entered as a judgment of the court, of the April term of the year 1821. 3rd, Turner v. Geyer, confessed in vacation, 6th March, 1821, for $1266 94, ordered by the court, on the 18th October, 1821, to be entered as a judgment of the April term, for the year 1821. 4th, Carr v. Geyer, rendered 4th September, 1821, for $176 37. 5th, Chenier v. Geyer, 18th September, 1821, for $477 65. 6th, Jamison v. Geyer, rendered 16th October, 1821, for $116 25. 7th, Foster v. Geyer, rendered 6th February, 1822, for $171 67 1/2.

Geyer's mortgage deed to Easton, executed as above stated, on the 27th September, 1821, was recorded on 14th November, 1821. The bill charges, that at the time of the sale of the lots by the sheriff to Wash, they were worth nine thousand dollars. On the 31st March, 1823, Wash, for the consideration of $1500, sold to Ferguson, one of the defendants, the same lots. The bill further charges, that Wash, purchasing the said property, acted as the agent of the said Ferguson, who owned, or pretended to own said judgment and execution of said Turner against said Geyer; and also as agent or trustee of said Geyer; and that as agent or trustee of said Geyer and Ferguson, Wash conveyed said property to said Ferguson; and that it was agreed between said Geyer and Ferguson, before the sale took place, that said Wash should purchase said property for their benefit, and that when Wash purchased the said property, and when he conveyed it to Ferguson, it was agreed between Geyer and Ferguson, that if Geyer should pay to Ferguson the sum of fifteen hundred dollars within a certain time thereafter, the property should belong absolutely to Geyer.

On the 31st day of March, 1823, being the same day that Wash conveyed the property to Ferguson, he (Ferguson) made to Geyer a deed of defeasance, stating that whereas Ferguson had that day sold and agreed to convey to said Geyer the property above mentioned; in consideration whereof, Geyer had paid to him the sum of nine hundred dollars, and had agreed to pay him the further sum of three thousand six hundred dollars, at several times as mentioned in his deed; therefore Ferguson did agree with Geyer, that so soon as the said sum of money should be paid, as was mentioned in the deed, he (Ferguson) would convey the said property to Geyer. The bill charges, that the sale of the property under execution was fraudulently contrived by Wash and Geyer, to prevent the creditors of Geyer from collecting what he owed them. That Carr, having received from another source a part of what Geyer owed him, ordered his execution to be returned, and that Chenier denied he had given any authority to issue his execution. On 28th November, 1826, Russell obtained against Geyer a judgment in the Circuit Court for the amount due on the notes made by him to Easton, and assigned by Easton to Russell, as above mentioned. The bill also alleges that Geyer is greatly embarrassed, and has no visible property on which the money due the complainant can be made, except the property above mentioned. That Wash, on 20th April, 1825, conveyed said property to one George Collier, in furtherance of the intention originally manifested by Ferguson to protect the said property from Geyer's creditors, for the sum of four thousand five hundred dollars; and that Collier, as the complainant was informed and believed, made to Geyer a deed, by which he agreed, in consideration that Geyer would pay to him, at certain times therein mentioned, the said sum of four thousand five hundred dollars; and for other considerations, that he (Collier) would convey the said property to some person for the benefit of the wife of Geyer; that the deed from Wash to Collier was made with the assent and privity of Geyer, in order to embarrass the title to the property and prevent the creditors of Geyer from ascertaining the true situation of the title.

Wash, in his answer, states that he was attorney for the Bryans and for Dent, and obtained for them the judgments as stated in the bill--admits that he purchased the property sold on execution, for the sum of money in the bill mentioned; that he purchased it as agent for his said clients, and not as agent for Ferguson or for any other person than his said clients--admits that on the day of sale he did say that unless persons interested in preventing a sacrifice of the property would satisfy the executions of which he had the control, as attorney as aforesaid, the law must take its course, he having no discretionary powers. That he frequently remarked to the persons standing around at the time of sale, and making inquiries about the property, that he had no wish or intention to purchase the property, but that he meant to bid for it, and buy it for his clients, or make it bring money enough to pay what was due to them; and that in the event of his being compelled to buy it, he would gladly receive the amount of his clients' judgments in some short time, say fifty or sixty days, and would thereupon re-convey to Geyer, or any other person he might name, in trust for the benefit of the other creditors. No agreement, however, was entered into either with Geyer or any other person, and he does not recollect ever having conversed or communicated with Ferguson upon the subject before the sheriff's sale. He states, that instead of waiting fifty or sixty days, as he had promised, he waited six or eight months on Geyer for the amount of Bryans' and Dent's judgment to be paid to him, and being informed by Geyer that he had made repeated efforts to raise the money, without success, the respondent determined to sell it, in order to raise the sums to be remitted to his clients, and accordingly did sell, after having advertised it for fifteen or twenty days; that it was sold at the auction room of Wm. H. Savage, in St. Louis, and that Ferguson became the purchaser, for the sum of fifteen hundred dollars; that the sale to Ferguson was absolute, but that afterwards, finding that Ferguson was not very well pleased with his purchase, he became interested in the purchase of one-half thereof. After Wash had been admitted to an interest in the purchase, Ferguson informed him that Geyer had made proposals to purchase the property from him, upon such terms as are set forth in the deed made by Ferguson to Geyer, which is made an exhibit in this bill. Wash conveyed to Ferguson. Geyer being unable to redeem the land according to contract, with the assent of Wash and Ferguson, effected a sale of the property to George Collier, who paid to Wash and Ferguson what was due them from Geyer, and Wash then made a deed to Collier for the said property, at the instance and request of Geyer. At the time the respondent made the deed to Collier, it was his belief that the legal title yet remained in him. When the deed from the respondent to Ferguson was executed, the contract with Geyer for the re-purchase of his property had just been concluded, and it was the understanding of the respondent that the said deed was not to be put on record until it should be seen whether the contract with Geyer would be complied with. He denies all collusion with Geyer and Ferguson or with either of them, to defraud the creditors of Geyer. He denies all knowledge of the complainant's mortgage at the time of the sheriff's sale. The respondent knows nothing of the authority on which the executions of Carr and Chenier were issued; he denies any agreement with Ferguson and Geyer or with either of them, respecting the re-purchase of this land, other than that above mentioned, to wait fifty or sixty days for the money to be paid him for his clients; he knows of no interest that Smith and Ferguson had in Turner's judgment; he had heard they held it, but how it was acquired he knows not; he does not know whether Ferguson had the control of any of the other judgments, and denies that he ever asserted, or that any other person within his knowledge did represent, that the property was to be purchased for the benefit of Geyer's creditors by the respondent, or that the same was encumbered, and that encumbrancers only could safely buy, or that he made any other representations of a character calculated to...