Thornburg v. Jones

• Citation: 36 Mo. 514
• Parties: JOSIAH THORNBURG, Plaintiff in Error, v. CHAS. JONES AND JAMES M. MING, Defendants in Error.
• Decision Date: 31 October 1865
• Court: United States State Supreme Court of Missouri

36 Mo. 514

JOSIAH THORNBURG, Plaintiff in Error,

v.CHAS. JONES AND JAMES M. MING, Defendants in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Court of Common Pleas.

The petition stated that on the 25th day of April, 1859, Hickman and Moore were seized in fee of certain tracts of land situate in the county of Franklin, &c. and being so seized, Hickman and Moore, by deed of trust, conveyed the said real estate to Ming, as trustee, to secure the payment of four notes, executed by Hickman and Moore, dated April 15, 1859, each for the sum of fifteen hundred dollars, and payable to the order of one James W. Wilson, at the Bank of the State of Missouri, in St. Louis; one of said notes being due twelve months after date, one due two years after date, one due three years after date, and the other due four years after date. It was provided in the deed of trust, that if the notes, or either of them, should not be paid at maturity, then the said Ming, or his legal representatives, or, in case of death or absence from the State, the sheriff of the county, might proceed to sell the said property, or any part thereof, at public vendue to the highest bidder, at Union, in Franklin county, for cash, first giving thirty days' public notice of the time, terms and place of sale, and of the property to be sold, by advertisement in some newspaper printed in St. Louis and Franklin county; and, upon such sale, shall execute and deliver a deed in fee simple of the property sold to the purchaser or purchasers thereof. That in March, 1860, Hickman and Moore sold and conveyed the said real estate to plaintiff, subject to said deed of trust; that the said Hickman and Moore, in the year 1859, paid in full the said note due one year after date, and also paid three hundred and ten dollars on said note due two years after date, and which amount was credited on said note as paid on the 15th of April, 1859; and that after the said payment Wilson sold the three notes--one due two years after date, one due three years after date, and the other due four years after date--to Charles Jones, for value received; that on or about the 11th day of October, 1860, the said Ming, at the instance of the said Jones, the owner and holder of said notes, caused an advertisement to be published in some newspaper, the name of which is unknown to plaintiff, printed and published in Franklin county, that he would on the 28th November, 1861, in the town of Union in said county of Franklin, proceed to sell the said real estate for the purposes mentioned in said deed of trust; that on the 28th day of November, 1861, the said Ming exposed the said real estate in a lump, or as a whole, for sale at public vendue in said town of Union, and the same was prchased by the said Jones, at the price and sum of twenty-seven hundred dollars; that the said advertisement was not inserted or printed in any newspaper, or published in St. Louis.

That at the time of said sale the said real estate was worth ten thousand dollars; that the makers of said notes, and the endorser thereof, are all good for the said amount of said notes, and are solvent and able to pay the said notes. That the said defendants maliciously combined and confederated together to prevent persons from bidding at said sale, in order to buy the said real estate at as low price as possible; that said defendants, in the said advertisement, recited that the sum of fifteen hundred dollars and interest was due on said note, when in fact there was only eleven hundred and ninety dollars and interest as aforesaid. And the said Ming and Jones, combining and confederating for the purpose and with the intent of defrauding, oppressing and overreaching plaintiff by sacrificing his said property, and getting it at a greatly and grossly inadequate and reduced price, put up said property for sale as aforesaid, and while said sale was being cried by public vendue, the said Ming, at the instance and under the direction of said Jones, and in combination and confederating with him, with the intent and for the purpose aforesaid, publicly proclaimed and made known to all the bidders and persons then present at said sale, that whoever purchased said real estate would be required to pay the whole amount of the bid, and the purchase money of said land, in gold, immediately upon the said land being knocked down to him, and before any deed was made or could be made. And there were then and present at said sale bidders, who had been bidding for said land at said sale when the said proclamation was made and wished to purchase the same, who stated to defendants that they had gold coin to pay for said land if they purchased it; but that the coin was not then present at the place of sale, but would be ready to be paid over to said Ming as soon as he was prepared to execute and deliver a deed for the land.

Whereupon said Jones proclaimed and stated in the hearing of said bidders at said sale, that he would not trust Jesus Christ, and that the gold would be required immediately upon the bidding off or knocking down of said land at said sale. And the said Ming went on crying the said sale of said land, after the statement and proclamation aforesaid, under the influence and agreeably to the terms of said statement and proclamation; and thereupon and by means thereof the various bidders upon said land then present, and who had been bidding upon said land before said statement and proclamation, as well as other persons then and there present, became and were overawed and frightened, and failed to bid further upon said land; by reason thereof the said land was bid off and purchased by said Jones, at the grossly inadequate sum of twenty-seven hundred dollars for the whole of said land, which was reasonably worth at the time of said sale the sum of ten thousand dollars; and that said land at said sale, but for the fraudulent combination and interest of the defendants, and the outrageous manner in which they conducted the sale, and the violent declarations and statements made by said Jones as foresaid, and the unlawful, unfair, oppressive and fraudulent manner in which said sale was effected and conducted, would have brought the sum of $4,500; and if the said sale had been fairly conducted and made, the said land would have brought the sum of $4,500; that in the manner and form aforesaid, and by the means aforesaid, the defendants have wilfully, maliciously, and fraudulently overreached and defrauded the plaintiff out of and sacrificed his said land as aforesaid, and has fraudulently converted the same to the use of him, the said Jones; whereby the said plaintiff has been damaged in the sum of seven thou sand five hundred dollars, for which, with his costs, he prays judgment.

The defendants demurred to the amended petition, for the reasons--

1. That plaintiff asks for judgment against the defendant Jones for a sum of money, whereas by the statement in the petition, if true, it is shown that no valid sale of the premises therein mentioned was made.

2. By the statements in said petition, the said plaintiff states, there i unpaid upon the notes mentioned in the petition, as avowed by defendant Jones, more than forty-five hundred dollars; but plaintiff makes no offer to pay said notes, or any part of them.

3. Because it is shown and averred in and by said amended petition, that the value of the land is not so great as the amount admitted in said petition to be unpaid.

4. Because the facts as shown in said petition prove no fraud or combination, or in any manner invalidate the sale.

The court sustained the demurrer, and the plaintiff appealed.

Whittelsey and Hamilton, for plaintiff in error.

I. As the trustee Ming had the legal title in the land, he could convey that title, and although the sale might have...