State ex rel. Polk Cnty. v. West

• Decision Date: 31 October 1878
• Citation: 68 Mo. 229
• Parties: THE STATE ex. rel. POLK COUNTY, Appellant, v. WEST.
• Court: Missouri Supreme Court

68 Mo. 229

THE STATE ex. rel. POLK COUNTY, Appellant,

v.WEST.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Polk Circuit Court.--HON. R. W. FYAN, Judge.

D. P. Stratton and T. J. Rechow for appellant.

John D. Abbe and Waldo P. Johnson for respondents.

SHERWOOD, C. J.

One James Miles owned certain land in Polk county. He mortgaged the land to secure debts to the amount of about $3,000, due the school fund of the county. The county foreclosed its mortgages, and the land brought some $1,400, the deed of the sheriff being made to one J. B. Burros, now deceased, who, at the time of the sale, was clerk of the county court. Burros, in a short time, re-sold the land for $2,500.

The object sought in the present proceeding, an equitable one, is to recover from his legal representatives the amount of $1,200, alleged to have been fraudulently realized by Burros, by reason of the sale for the sum last mentioned, and by reason, also, that in the purchase made he was acting as the agent of the county and betrayed his trust by purchasing the land for himself, and by suppressing bidding. The cause was twice heard, once in the probate court and once in the circuit court, resulting in each instance in a judgment for defendants. There was no agency on the part of Burros, as to the Miles land shown by but one witness, Milliken, who only states in general terms that he and Burros had agreed, in the presence of Judge Murray, of the county court, to buy in the lands that would be sold under various mortgages, if they did not bring the debts; but Judge Murray, who recollected the conversation mentioned by Milliken, says that in that conversation Burros expressed a desire to buy in the Miles land for himself; asked the judge's advice, who told him that he would be safe to buy in the land for $1,400 or $1,500. There was other testimony showing that Burros acted as the agent of the county, in bidding other tracts of land for the county, but there was no testimony showing that Burros agreed to buy in the Miles land for the county, except the general statement of Milliken, and the equally inconclusive statements of Judge Barnett, another member of the county county, who “got that impression some way” that Burros was to bid in the Miles land for the county. But even Barnett admits that he knew then, that Burros desired to buv the land for himself. Under such circumstances, we are disposed to place the greatest reliance upon the statement of Judge Murray, that as to the Miles land, Burros distinctly avowed his intention of bidding it in for himself. And the fact that he consented to act, and did act as the agent of the county in bidding in other lands, is by no means inconsistent with the idea of declining such agency in respect of the Miles tract.

It has been suggested by counsel that there was no agency in any event, because, under the ruling in Ray County v. Bentley, 49 Mo. 242, the county had no authority to purchase land at such sale, and, therefore, could delegate none. We do not take this view, nor are we influenced by such considerations, for the reason that whether the county could thus purchase or not is entirely immaterial, since, if a party assumes to act as an agent, it does not lie in his mouth to deny the validity of his appointment, and thus shelter himself from responsibility. But we base our conclusion as to Burros' alleged agency upon the vague and indeterminate nature of the testimony adduced in this regard, on the part of plaintiff, and the very satisfactory and definite evidence...