Uhrig v. Hill-Behan Lumber Co.

• Decision Date: 03 December 1937
• Parties: Catherine Uhrig, L. H. Cowdery and Anna Steiner, v. Hill-Behan Lumber Company, a Corporation, Boeckler Lumber Company, a Corporation, and Archwill Realty Company, a Corporation, Appellants
• Court: Missouri Supreme Court

110 S.W.2d 412

341 Mo. 851

Catherine Uhrig, L. H. Cowdery and Anna Steiner, v. Hill-Behan Lumber Company, a Corporation, Boeckler Lumber Company, a Corporation, and Archwill Realty Company, a Corporation, Appellants

Supreme Court of Missouri

December 3, 1937

Appeal from Circuit Court of City of St. Louis; Hon. James M Douglas, Judge.

Reversed and remanded (with directions).

Sylvan Agatstein and Frank E. Atwood for appellants.

(1) The findings, judgment and decree are erroneous because inconsistent with, or beyond the scope of, any sufficient allegations in plaintiffs' bill. (a) The relief granted by the court must be exclusively predicated upon facts alleged in the bill of complaint. Schneider v Patton, 175 Mo. 723, 75 S.W. 155; Massey-Harris Harvester Co. v. Fed. Reserve Bank, 48 S.W.2d 165; Friedell v. Bailey, 44 S.W.2d 9; Texas Empire Pipe Line Co. v. Stewart, 35 S.W.2d 627; 21 C. J. 672. (b) Specific acts constituting charge of fraudulent conduct. Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 287; Klaber v. Unity School of Christianity, 330 Mo. 854 51 S.W.2d 35; 21 C. J. 396, sec. 412; 62 A. L. R. 858; 10 R. C. L. p. 415, sec. 171. (c) The facts alleged in plaintiffs' bill as a matter of law constitute no cause of action, because they seek to place upon defendants obligations and duties which do not exist. Secs. 745, 3181, R. S. 1929. (d) Defendant Boeckler Lumber Company strictly followed legal statutory procedure in obtaining its mechanic's lien judgment and levying execution thereunder. The only necessary parties to a mechanic's lien suit are those whose interests are disclosed by the public records at the time of the institution of the suit. Secs. 745, 3181, R. S. 1929; Redlon v. Badger Lbr. Co., 194 Mo.App. 650, 189 S.W. 592; Langdon v. Kleeman, 278 Mo. 236, 211 S.W. 879. (e) Equity does not require the doing of any act which is not required in law. 26 C. J. 1177, Note 61; Franklin Ins. Co. v. Humphrey, 65 Ind. 549; Wheeler v. Mo. Pac. Railroad Co., 42 S.W.2d 179; Gillett v. Union Natl. Bank, 56 Mo. 304. (f) Unless there are confidential relationships between the parties or relations of trust, neither party need disclose to the other facts which are equally accessible to both. 26 C. J. 1177, Note 61; Hines v. Royce, 106 S.W. 1091. (g) A court of equity has no more right to steer its course by crude notations of what is right in a particular case than has a court at law. The chancellor is bound to obey the statute law of the State. 1 Pomeroy's Equity Jurisprudence, sec. 47; Sell v. West, 125 Mo. 631, 28 S.W. 969; Stevens v. De La Vaulx, 166 Mo. 20. (2) The findings, judgment and decree are erroneous because the evidence does not disclose any facts or circumstances constituting fraud or wrongdoing on the part of defendants. That property reasonably worth about $ 14,000 sold at execution sale for $ 1260 is not, in and of itself, sufficient allegation or proof of fraud, and there are no other facts or circumstances in evidence which, standing alone or coupled therewith, constitute fraud, unfairness or oppression. 1 Pomeroy's Equity Jurisprudence, sec. 47; 2 Freeman on Executions (3 Ed.), sec. 3041; Hammond v. Scott, 12 Mo. 8; Meier v. Zelle, 31 Mo. 331; 23 C. J. 676; Betzler v. James, 227 Mo. 387; Van Graafieland v. Wright, 288 Mo. 414, 228 S.W. 465; Davis v. McCann, 143 Mo. 172, 44 S.W. 795; Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; State ex rel. McKinney v. Davidson, 315 Mo. 557, 286 S.W. 355; Dougherty v. Gangloff, 239 Mo. 662, 144 S.W. 434; Swabey v. Boyers, 71 S.W.2d 110; Briant v. Jackson, 99 Mo. 585, 13 S.W. 91; Phillips v. Steward, 59 Mo. 493; Knoop v. Kelsey, 121 Mo. 642, 26 S.W. 683; 23 C. J. 678; Atchinson v. Hutchinson, 51 Tex. 223.

D. Calhoun Jones for respondents.

(1) Inadequacy of price coupled with fraud or unfairness such as to shock the conscience of the court will justify the court in setting aside a deed obtained by parties using such means. Van Graafieland v. Wright, 228 Mo. 414, 228 S.W. 465; 23 C. J., p. 678, sec. 671. (2) A presumption exists in favor of the chancellor's finding on questions of fact. 4 C. J., p. 897, sec. 2868; Benne v. Schnecka, 100 Mo. 250; Williams v. Williams, 168 S.W. 618.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is a suit in equity to set aside a sheriff's deed conveying real estate, in the city of St. Louis, sold under a mechanics' lien judgment. The court entered a decree ordering defendant Archwill Realty Company to execute a quitclaim deed conveying the property to plaintiffs and ordering plaintiffs to pay said defendant $ 1565.33. Defendants have appealed.

The three plaintiffs, herein, Catherine Uhrig, L. H. Cowdery and Anna Steiner, are sisters. The three defendants are corporations. As indicated by the corporate name, two of these corporations are engaged in the lumber or building materials business, the third appears to deal in real estate. Plaintiffs alleged, and their evidence tended to show, that "defendant Hill-Behan Lumber Company owns and controls the Boeckler Lumber Company, and that defendant Archwill Realty Company is merely a straw for the defendant Hill-Behan Lumber Company." The defendants, as appellants, have not disputed such alleged joint interest and we shall treat them, as did the trial court, as being joined in interest in the subject matter of this controversy. Defendants claim title to and ownership of a certain parcel of land in the city of St. Louis, whereon is located an "eight family apartment building," known as 2715-2719 Burd Avenue, by virtue of a sheriff's deed under a sheriff's sale on execution upon a mechanics' or materialmens' lien judgment. Prior to this sheriff's sale plaintiffs, the owners and holders of notes secured by a deed of trust on this same property, had caused the deed of trust to be foreclosed and claim title and ownership of the property by virtue of the trustee's deed to them on such foreclosure.

The evidence discloses the following facts. In December, 1927, the Franciscus Realty Company, a corporation, engaged in the general real estate business, and in the buying and selling of real estate securities, in the city of St. Louis, sold plaintiffs a note in the principal sum of $ 17,500 dated July 27, 1927, due three years after date, secured by a deed of trust on the real estate involved in this controversy. The note and deed of trust were delivered to plaintiffs at the time of purchase together with a certificate of title, dated December 8, 1927, which showed upon its face that the deed of trust was a first lien upon the real estate. The principal note and the interest notes were made payable at the office of the Franciscus Company. Plaintiffs at no time met or had any dealing with the owners of the property, or the makers of the note and deed of trust, or the payee in the note and the cestui que trust in the deed of trust. The Franciscus Company as plaintiffs' agent collected the interest notes as they matured. In fact, as will presently more fully appear, the Franciscus Company apparently acted for plaintiffs and as their agent in all matters pertaining to this loan and plaintiffs relied upon it to act for them in such capacity. The president of the company, James M. Franciscus, was named trustee in the deed of trust, a circumstance to be borne in mind. The defendant Boeckler Lumber Company had a mechanics' or materialmens' lien against this same real estate arising out of materials entering into the construction of the apartment building. These materials had been furnished prior to the recordation of the deed of trust and the mechanics' lien had priority over the lien of the deed of trust. The priority of the mechanics' lien is conceded. In April, 1928, some four months after plaintiffs had purchased the note and deed of trust and received the certificate of title of date of December 8, 1927, the Boeckler Lumber Company filed suit to enforce its mechanics' lien. In this suit the grantors in the deed of trust, James M. Franciscus, trustee, the cestui que trust therein, the unknown holders and owners of the notes secured thereby, and the record owners of the fee simple title, of the property, were made defendants. Personal service of summons was had on both the trustee, James M. Franciscus, and the cestui que trust, in the deed of trust.

The American Surety Company "had written a mechanics' lien bond dated August 19, 1927, for $ 17,500 (the amount of the note secured by this deed of trust) the purpose" or condition "of which was to save the Franciscus Company harmless from any loss by reason of liens against the property" described in this deed of trust. Upon service of the summons, with copy of the petition, upon James M Franciscus, the trustee, and president of the Franciscus Company, the assistant treasurer, of the company mailed the summons and copy of the petition to the American Surety Company with a letter calling the attention of that company "to the fact that it was a mechanics' lien case" and that it had written a bond covering such liens against this property. Sometime later the American Surety Company acknowledged the letter and receipt of summons and copy of the petition and advised the Franciscus Company; "this matter is receiving our attention." However so far as the record discloses the surety company did nothing whatsoever about the matter nor did the Franciscus Company do anything further about it. The attorney in charge of the lien suit and defendants' officers said no one ever at any time took up the matter of this lien with them. The treasurer of the Franciscus Company, a Mr. Louis Maginn testified that he personally "advised with plaintiffs in all things with reference to this deed of trust" and that, as early as 1928, "there was no question about our company having...