Scheer v. Trust Co. of St. Louis

• Citation: 49 S.W.2d 135,330 Mo. 149
• Decision Date: 08 April 1932
• Docket Number: 30052
• Parties: William H. Scheer v. The Trust Company of St. Louis County and the First National Bank of Clayton, Appellants
• Court: United States State Supreme Court of Missouri

49 S.W.2d 135

330 Mo. 149

William H. Scheer v. The Trust Company of St. Louis County and the First National Bank of Clayton, Appellants

No. 30052

Supreme Court of Missouri

April 8, 1932

Appeal from Circuit Court of St. Louis County; Hon. Jerry Mulloy, Judge.

Reversed and remanded (with directions).

Joseph C. McAtee and Henry Higginbotham for appellants.

(1) He that hath engaged in a fraudulent enterprise cannot complain that his associate in fraud has not kept the faith. Courts of justice do not sit for the promotion of fraud or illegality. It is no part of their function to aid any party to a fraudulent or illegal scheme in carrying it out, in adjusting its accounts or in dividing its spoils. It will take the parties to such a scheme as its finds them, and as it finds them will leave them without assistance in their fraudulent enterprise. Or otherwise stated to the same effect: Judicial tribunals should not be called upon to adjust the balance of profit and loss between joint adventurers in iniquity. No action lies for the price of fraud. The law, whose mission it is to right the innocent and to enforce the performance of licit obligations only, leaves parties who traffic in forbidden things and then break faith with each other, to such mutual redress as their own standard of honor may award. These principles are applicable whether the action be a proceeding at law or in equity. The gates of legal and equitable relief and remedy are shut against them. Ex turpi causa non oritur actio. In pari delicto, potior est conditio defendentis. Ex dolo malo non oritur actio. Gilmore v. Thomas, 252 Mo. 157; Ward v Hartley, 178 Mo. 140; Ullman v. St. Louis Fair Assn., 167 Mo. 287; Hamilton v. Scull's Admr., 25 Mo. 167; McDaniel v. Sprick, 297 Mo 446; Witmer v. Nichols, 320 Mo. 671; Zeidler v Schneider, 181 Mo.App. 277; Hellman v. Natl. Council of the Knights & Ladies of Security, 198 Mo.App. 316; Froelich v. Musicians Mutual Benefit Assn., 93 Mo.App. 392; Farmers Bank of Billings v. Schmidt, 25 S.W.2d 528; Sidway v. Mo. Land and Live Stock Co., 187 Mo. 649; Hampton v. McClanahan, 143 Mo. 501; Primeau v. Grandfield, 193 F. 911, 114 C. C. A. 549; Boatner v. Yarborough, 12 La. Ann. 249, quoted with approval In re Teller's Estate, 200 Mich. 186; Meyer v. Garmer, 36 La. Ann. 788; Pendleton v Gondolf, 85 N.J.Eq. 308. (2) Agreements and combinations to chill a public sale are void, for they are unconscientious, against public policy and have a tendency to injuriously affect the character of such sales, to mislead private confidence and to operate as a fraud upon the sale and upon third persons. Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 216 S.W. 954; Hurst Automatic Switch & Signal Co. v. Trust Co. of St Louis County, 291 Mo. 54; Wooton v. Hinkle, 20 Mo. 292; Hook v. Turner, 22 Mo. 335; Miltenberger v. Morrison, 39 Mo. 78; Stewart v. Severance, 43 Mo. 335; Springer v. Kleinsorge, 83 Mo. 163; McDaniel v. Sprick, 297 Mo. 446; Engleman v. Skrainka, 14 Mo.App. 441; Lawnin v. Bradley, 13 Mo.App. 361. (3) The purchaser, either at a judicial sale or one under a deed of trust, who is guilty of any fraud, trick or device the object of which is to obtain the property at less than its value, and succeeds in doing so, will not be permitted to enjoy the fruits of his purchase on that ground. Keiser v. Gammon, 95 Mo. 224; Neal v. Stone, 20 Mo. 296; Clarkson v. Creeley, 40 Mo. 117; First Natl. Bank of Monett v. Wilson (Mo.), 222 S.W. 384; McDaniel v. Sprick, 297 Mo. 445; Martin v. Blight's Heirs, 4 J. J. Marshall (Ky.) 491; Hall v. Cushman, 14 N.H. 171; Abbey v. Dewey, 25 Pa. St. 416. (4) Where a person has been guilty of actual fraud in the purchase of real estate at a sheriff's or trustee's sale, he is not entitled to be reimbursed what he has paid for it. Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 298; McCaskey v. Graff, 23 Pa. St. 321; Luther v. Luther, 242 Pa. St. 530; Stovall v. Farmers & Merchants Bank of Memphis, 8 Smedes & M. (Miss.) 305, 47 Am. Dec. 85; McLoskey v. Gordon, 26 Miss. 284; Sands v. Codwise, 4 Johns, 599; Goble v. O'Connor, 43 Neb. 60. (5) The opinions of the Supreme Court in the former case of Hurst Automatic Switch & Signal Company v. Trust Company of St. Louis County, 216 S.W. 954, 291 Mo. 54, 264 S.W. 406, 309 Mo. 120, and 5 S.W.2d 3, and the facts therein found and determined by this court are parts of the record of which this court takes judicial notice, and such facts and law so found and determined are binding upon the plaintiff and Walton and the trial court in the case at bar involving the same subject-matter, the foreclosure of the same Massey deed of trust and the purchase of the same by Scheer and Walton at an undervalue. In these opinions this court thrice found and determined Walton to be in substance the arch conspirator, with Scheer as his partner, in an unlawful conspiracy to chill a foreclosure sale of this same Massey farm under the same Massey mortgage and in a combination to bribe one Steffan, who held a second mortgage. Sabol v. Cooperage Co., 31 S.W.2d 1041; Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 216 S.W. 954; Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 291 Mo. 54; Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 264 S.W. 406; Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 5 S.W.2d 3; State ex rel. v. Wurdeman, 309 Mo. 120. (6) The action for money had and received was originally of purely equitable cognizance and the primary right is still a creation of equity -- that is, the right to have the money back on the issue of right or no right to have the money back -- and is to be determined by the rules and principles of equity; and if under fixed equitable principles and in equity and good conscience the right does not arise the plaintiff cannot recover. Or, otherwise stated, to defeat the action it is only necessary for the defendant to show that, although it received the money, yet, in natural justice and equity, it ought not to be required to return the money. Unless the plaintiff shows such superior right -- that is, a right in equity and good conscience to the money -- he cannot recover. The remedy for enforcing the right to money had and received, as distinguished from the primary right itself, is at law and is the ordinary civil action of the code with all the incidents of an action at law. Steuerwald v. Richter, 158 Wis. 605, 149 N.W. 692; Kostuba v. Miller, 137 Mo. 174; Arn v. Arn, 81 Mo.App. 137; Mount Olive Coal Co. v. Estate of Slevin, 56 Mo.App. 111; Meyers v. Hurly Motor Co., 273 U.S. 24; Carey v. Curtis, 3 How. 246; Natl. Bank of Commerce v. Equitable Trust Co., 227 F. 531; Keyes v. First Natl. Bank of Aberdeen, 25 F.2d 688; American Surety Co. v. Connor, 251 N.Y. 1; Hellman v. Natl. Council of Knights & Ladies of Security, 198 Mo.App. 316; Wilson v. Torchon Lace & Merc. Co., 167 Mo.App. 326; Tobin v. Hewitt Co., 232 S.W. 257. (7) A finding of facts and separate conclusions of law by a court must find all the constitutive facts in issue in order to be the statutory finding of facts, and the failure in this respect -- that is, to find all such constitutive facts -- is reviewable on appeal, and where such omitted facts are incontrovertibly shown by other parts of the record the judgment should be reversed outright. Korneman v. Davis, 281 Mo. 246; Fahy v. Springfield Grocer Co., 57 Mo.App. 76; Farrar v. Lyon, 19 Mo. 122; Allison v. Darton, 24 Mo. 346; Shipp v. Snyder, 121 Mo. 155 (8) Where one side asks for a finding of facts under Section 1402, the other side may ask instructions under Sec. 1417, R. S. 1919, and their refusal is subject to review. Rausch v. Michel, 192 Mo. 302; Gordon v. Davis, 172 Mo. 609; Sutter v. Raeder, 149 Mo. 308; Harbison v. School Dist. No. 1, 89 Mo. 187; R. S. 1919, sec. 1417; R. S. 1929, sec. 967; R. S. 1909, sec. 1987; R. S. 1899, sec. 748; Green v. Whaley, 271 Mo. 647; R. S. 1889, sec. 2188; Laws 1877, p. 360, sec. 1; R. S. 1879, sec. 3655; R. S. 1865, p. 677, sec. 47; R. S. 1855, p. 1268, sec. 47; R. S. 1919, sec. 1402; R. S. 1929, sec. 952; R. S. 1909, sec. 1972; R. S. 1899, sec. 695; R. S. 1889, sec. 2135; Laws 1849, p. 90; 2 R. S. 1855, pp. 1261-1262. (9) An answer setting up an equitable defense and praying affirmative equitable relief transforms the action to a suit in equity, with all the incidents of a suit in equity. In an equity case, the Supreme Court will not be bound by the trial court's findings, but will review the entire evidence, make its own findings and render proper judgment, and it is reversible error to strike out such answer or proper parts or the prayer thereof. Myers v. Schuchmann, 182 Mo. 171; Swon v. Stevens, 143 Mo. 392; Fisher v. Stevens, 143 Mo. 189; Fitzpatrick v. Weber, 168 Mo. 572; Bouton v. Pippin, 192 Mo. 469; Strong v. Gordon, 203 Mo.App. 472. (10) An executed contract requires no consideration to support it. If it is voluntarily, and with full knowledge of the facts executed, the property in the thing, whether money or a chattel, is transferred and it cannot be reclaimed. So a consideration is not an essential part of an executed contract. 13 C. J. 314, sec. 145; Sooy v. Winter, 188 Mo.App. 156; Ward v. Hartley, 178 Mo. 144; Claflin v. McDonough, 33 Mo. 415; Farrington v. Tennessee, 95 U.S. 683; Fletcher v. Peck, 6 Cranch. (U.S.) 136; Bever v. Butler, Wright's Ohio Rep. 368; McNett v. Cooper, 13 F. 590; Mettel v. Gales, 12 S. Dak. 639; Mathews v. Smith, 67 N.C. 374; McKenzie v. Harrison, 120 N.Y. 264; Bishop on Contracts (2 Ed.) sec. 81; Elliott on Contracts, sec. 202; 1 Page on Contracts (2 Ed.) sec. 540; 1 Bouvier's Law Dict. (Rawle's 3rd Rev.), p. 619, column 2; Synopsis of the Law of Contracts, by Judge Amos Thayer, p. 7, ...