Schaeffer v. Moore, No. 43657

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation262 S.W.2d 854
Decision Date14 December 1953
Docket NumberNo. 1,No. 43657
PartiesSCHAEFFER v. MOORE et al

Page 854

262 S.W.2d 854
SCHAEFFER

v.
MOORE et al.
No. 43657.
Supreme Court of Missouri, Division No. 1.
Dec. 14, 1953.

Page 856

Suelthaus & Krueger, G. L. Seegers, St. Louis, for appellants.

Boedeker & Weil, Clayton, Ziercher & Tzinberg, Erwin Tzinberg, Clayton, for respondent.

VAN OSDOL, Commissioner.

Action to try, ascertain and determine title to eleven lots in Times Beach, St. Louis County. The lots had been sold at sheriff's sale under execution issued upon a judgment rendered against Irene Moore, defendant and cross-claimant in the instant action, who had acquired the property from one Rose M. Schenberg by warranty deed in 1949. At the sheriff's sale, January 15, 1951, Roy McKittrick was the 'highest and best bidder' (he was in fact the only bidder) and acquired the property at his bid of $175. He knew nothing about the property or the condition of the title. He was acting in behalf of his son, attorney for the judgment creditor. Thereafter the purchaser, McKittrick, sold the property for $1,000 to Morris Benson, and Charles Dralle (now deceased), partners doing business as Benson-Dralle Realty Company, and, at the direction of the purchasers, Benson and Dralle, McKittrick conveyed the property (by quitclaim deed dated January 24, 1951) to plaintiff, a straw party.

Benson and Dralle sold the property October 27, 1951, to Norma Morgan, for $4,500, plaintiff conveying the property to Norma by quitclaim deed of that date. Defendant Norma Morgan paid $200 of the purchanse price in cash and she and her husband, Charles, executed notes aggregating $4,300 (secured by deed of trust to Morris Benson as trustee for plaintiff, Frances Schaeffer) for the balance of the purchase price.

Plaintiff in her petition, filed May 29, 1951, alleged that a certain deed executed by several grantors (named 'Blomes') conveying some of the lots to Rose M. Schenberg had been lost or destroyed; and that one John Summers claimed some interest in the property. Plaintiff also alleged defendants (necessarily including defendant Irene Moore) claimed some interest; the nature of their claims, it was alleged, was unknown to plaintiff. Notice of the pendency of the action was by publication. At the time, defendant Irene Moore was in California; but, March 26, 1952, defendant Irene filed her answer and cross-claim alleging that the sheriff's sale 'was unlawful, illegal, null and void and of no force and effect for the reason that at the time of said sale the fair market value of said real estate * * * was at least the sum of $5,000.00 and that the sale thereof at said Sheriff's sale for the total price and sum of $175.00 was so greatly inadequate and unconscionable as to amount to fraud requiring that said sale be set aside.' Defendant Irene Moore also prayed for the cancellation of the conveyances subsequent to the sheriff's deed, including the deed of trust and notes secured, and for a decree determining title to be in her. Pursuant to the cross-claim, Norma and Charles Morgan; Morris Benson, trustee, and Frances Schaeffer, beneficiary in the deed of trust; and the unknown holders of the notes secured were added as parties defendant and summoned. These parties defendant, including Morris Benson and Charles Dralle, actual owners and holders of the notes, filed answers. At the conclusion of the trial of the issues raised by the pleadings, it was found, ordered and adjudged by the trial court that the sheriff's deed 'is fraudulent, null and void and the same is cancelled, set aside and for naught held,' and the subsequent conveyances, including the deed of trust, were ordered cancelled. Plaintiff, and defendants Norma Morgan, Charles Morgan, Morris Benson (trustee), Morris Benson, and Charles Donald Dralle (personal representative of Charles Dralle, deceased) have appealed.

Appellants initially contend that McKittrick, purchaser at the sheriff's sale and grantor in the conveyance to plaintiff, was a necessary and indispensable party; and that the trial court should have refused to enter a decree until McKittrick had been made a party to the action. Appellants

Page 857

further contend that the parties to whom the property had been conveyed subsequently to the sheriff's deed were bona fide purchasers and the relief of cancellation on the ground of the inadequacy of consideration paid by the purchaser at the sheriff's sale should not have been granted, particularly in the absence of any evidence or finding of fraud or collusion to commit fraud on the part of appellants, subsequent purchasers. Furthermore, appellants contend that defendant Irene Moore was guilty of laches, and was estopped by her conduct to set aside the conveyances; and that, in any event, the consideration paid at the sheriff's sale, in view of the state of the title, was not so inadequate or unconscionably low as to amount to constructive fraud.

Cross-claimant, defendant, respondent, Irene Moore, testified that she went to California in December 1949. She had been ill, and went to California to see if she could recuperate. She had purchased the lots (sometimes referred to as the 'Eureka Place,' and sometimes referred to as the 'club') in Times Beach, paying $5,000 in cash. She acquired title by warranty deed from Rose M. Schenberg in 1949; she lived in the two-story building on the property about two months, leaving for California in December of that year. In March or April of 1950 she leased the property to Norma and Charles Morgan, third-party defendants, appellants, for $22.50 per month. Norma and Charles took possession and lived on the second floor and conducted a tavern business on the first floor of the building. By letter of June 8, 1950, Irene wrote Norma and Charles telling them of her continued illness and advising them, as follows, 'please forgive me for not writing sooner but I'm sure you would if you knew how sick I've been, really you couldn't have read what I'd have written as I've been a complete wreck since I was there I just hope you can make a go of your business but until I get better than I am now you can do business with Plummer You see now I have to have some one take care of my business in fact he has spent all his money paying Dr bills for me and I am not very much better than when I started so until I get well enough to come back there you can send the rent money to (W. O. 'Bill') Plummer (then in Fort Worth, Texas) and it will be O. K. with me.' Irene testified she did not know how much rent Plummer collected 'because I didn't hear from him.'

Irene testified that she first learned that the property had been sold in February 1952. She had written Norma asking her if she would like to own the property. Norma replied by letter of February 19, 1952, 'You asked me if I would like to own the club, well I don't know if Bill told you or not, but I do own it. The sheriff sold it to pay that suit that Lucille Kelly had...

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26 practice notes
  • Allison v. Mildred, No. 45605
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1957
    ...in the transaction for passing the title from S & N to Vincil, then the situation was one to arouse suspicion. Schaeffer v. Moore, Mo., 262 S.W.2d 854; Houtz v. Hellman, 228 Mo. 655, 669, 128 S.W. 1001, Defendants' witnesses established that of the $3,000 A. W. received for the farm from S ......
  • Di Pasco v. Prosser, No. 44106
    • United States
    • Missouri Supreme Court
    • December 13, 1954
    ...the grantor, subject to outstanding encumbrances and equities against the grantor not required to be recorded. Schaeffer v. Moore, Mo., 262 S.W.2d 854, 858[6, 9, 10], citing authority; Shelton v. Horrell, 232 Mo. 358, 378(IV), 389, 134 S.W. 988, 992(4), 137 S.W. 264, Here the owner conveyed......
  • Brown v. H & D Duenne Farms, Inc., No. 16365
    • United States
    • Missouri Court of Appeals
    • November 21, 1990
    ...in the litigation, unless he has been made a party and afforded the opportunity to be heard in defense of his rights. Schaeffer v. Moore, 262 S.W.2d 854, 858 (Mo.1953). More specifically, it has been held that under prior and similar statutes, the procedure prescribed for the formation of a......
  • Jackson v. Klein, No. 46565
    • United States
    • Missouri Supreme Court
    • January 12, 1959
    ...circumstance in considering constructive notice and whether they are bona fide purchasers without notice. Schaeffer v. Moore, Mo., 262 S.W.2d 854; McAboy v. Packer, supra; annotation 162 A.L.R. 556, 560; 16 Am.Jur., Sec. 334, p. As noted, this property was foreclosed and the trustee's deed ......
  • Request a trial to view additional results
26 cases
  • Allison v. Mildred, No. 45605
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1957
    ...in the transaction for passing the title from S & N to Vincil, then the situation was one to arouse suspicion. Schaeffer v. Moore, Mo., 262 S.W.2d 854; Houtz v. Hellman, 228 Mo. 655, 669, 128 S.W. 1001, Defendants' witnesses established that of the $3,000 A. W. received for the farm from S ......
  • Di Pasco v. Prosser, No. 44106
    • United States
    • Missouri Supreme Court
    • December 13, 1954
    ...the grantor, subject to outstanding encumbrances and equities against the grantor not required to be recorded. Schaeffer v. Moore, Mo., 262 S.W.2d 854, 858[6, 9, 10], citing authority; Shelton v. Horrell, 232 Mo. 358, 378(IV), 389, 134 S.W. 988, 992(4), 137 S.W. 264, Here the owner conveyed......
  • Brown v. H & D Duenne Farms, Inc., No. 16365
    • United States
    • Missouri Court of Appeals
    • November 21, 1990
    ...in the litigation, unless he has been made a party and afforded the opportunity to be heard in defense of his rights. Schaeffer v. Moore, 262 S.W.2d 854, 858 (Mo.1953). More specifically, it has been held that under prior and similar statutes, the procedure prescribed for the formation of a......
  • Jackson v. Klein, No. 46565
    • United States
    • Missouri Supreme Court
    • January 12, 1959
    ...circumstance in considering constructive notice and whether they are bona fide purchasers without notice. Schaeffer v. Moore, Mo., 262 S.W.2d 854; McAboy v. Packer, supra; annotation 162 A.L.R. 556, 560; 16 Am.Jur., Sec. 334, p. As noted, this property was foreclosed and the trustee's deed ......
  • Request a trial to view additional results

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