Van Graafieland v. Wright

• Decision Date: 30 December 1920
• Docket Number: No. 21450.,21450.
• Citation: 286 Mo. 414,228 S.W. 465
• Parties: VAN GRAAFIELAND et ux. v. WRIGHT et al.
• Court: Missouri Supreme Court

228 S.W. 465

286 Mo. 414

VAN GRAAFIELAND et ux. v. WRIGHT et al.

No. 21450.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Rehearing Denied March 5, 1921.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Suit by Charles P. Van Graafieland and wife against H. J. Wright and wife and others. From a judgment in favor of plaintiffs, the defendants appeal. Affirmed.

Clarence L. Shotwell, of Ballwin, and John V. Lee and Clarence T. Case, both of St. Louis, for appellants.

Charles A. Houts, of St. Louis, for respondents.

BROWN, C.

Suit in equity to set aside sheriff's sale and deed thereunder conveying the following land in St. Louis county:

"Lot 9 of Southmoor subdivision of St. Louis county, fronting 87 feet on a private street, running thence back in a northerly direction 211.88 feet, more or less, on the east line, and 226.75 feet, more or less on the west line, by 143 feet on the north line in said Southmoor subdivision, together with buildings and improvements located thereon."

The petition states, in substance: That the plaintiffs, husband and wife, were, at all the dates mentioned, the owners of said land, which was and is of the value of $25,000; that on October 25, 1916, the defendant Wright brought suit before one L. F. Matthews, a justice of the peace at Clayton, Central township, in said county, against B. J. Charleville as contractor and plaintiffs as owners of said land, for $55.40 for labor and material furnished to said contractor in the construction of improvements thereon, and asking that the judgment against Charleville be declared a lien upon the land and improvements. That on December 18, 1916, the justice rendered judgment for that amount against Charleville, and, if no sufficient property of his should be found, to be levied of said land, which was charged with a lien therefor. That a transcript of said judgment was filed in the office of the clerk of the circuit court of said county, by whom an execution was issued thereon-on May 9, 1917, in the statutory form prescribed in such cases. This was duly levied upon the land, which was sold thereunder on June 11, 1917, to defendant H. J. Wright, who was the only bidder, for $87.50, and a sheriff's deed duly executed to him therefor. That thereafter said Wright and wife conveyed the same land by warranty deed, reciting a consideration of $2,000 to defendant Moores, who, on August 9, 1917, conveyed it to defendant Burke by warranty deed reciting a consideration of $2,250. Both these deeds were promptly recorded. Neither of these grantees paid anything for the land, or claim any interest therein, and the deeds were made for the purpose of casting a cloud upon the title for the accommodation of Wright. It also states that Charleville contracted with the plaintiffs for the erection of said improvements, for the completion of which, discharged of all liens for work and materials, he gave bond with a corporation as surety; that upon the recovery of said judgment plaintiffs immediately notified the surety company, which agreed to take care of it; that they were not notified, nor had they any knowledge or information of the filing of the transcript, the issue of the execution or sale of the property, and did not hear of it until demand for possession was made upon them by Wright after his purchase. That they then offered and still offer to pay him the amount of his judgment and all costs and expenses incurred in the premises which he refused and still refuses to accept, and until his said transfer to Moores claimed to be the owner of the premises, and demanded possession thereof. That Moores and Burke received the conveyances to themselves respectively with full knowledge of all the facts and for the purpose of assisting defendant Wright to defraud plaintiffs. The prayer is that the sheriff's sale and deed thereunder, together with the deeds to Moores and Burke, be set aside, and for general relief.

The answer of Wright sets out his judgment and sheriff's deed substantially as stated in the petition, and admits the execution of the deeds to Moores and Burke, and says they were made "for the purpose of enabling the defendant to secure from a subsequent purchaser whatever value the defendants' equity in the property may be worth." It puts in issue the values stated in the petition, and all averments not admitted. Moores and Burke disclaim any interest under their deeds.

The following facts appear in the record: The property in question is a lot containing something over one-half acre of ground. Mr. Charleville, as contractor, built a residence on the land for plaintiffs, for which he was to receive as the contract price $11,440, the building to be completed some time in November, 1915. To secure the performance of this contract he gave a bond in which the American Surety Company was surety, conditioned, among other things, against liens for work and materials furnished by him in its construction. In December, 1915, the building being practically completed, Mr. Charleville asked for settlement with the architect, who on examination of the building found it deficient in several respects, including the shrinkage of the hard wood floors away from the baseboards, settlement of the foundation so as to leave a hump in the floor, and defective plastering through which the laths shoved, so that it could not be properly frescoed as contemplated. These things Mr. Charleville promised to complete, but a settlement was not arrived at until the next spring, when Mr. Van Graafieland paid all amounts claimed from him by Charleville with the exception of the $55.40, out of which this difficulty has arisen. It is not disputed by Mr. Charleville that he owed Wright this sum, but he says that Mr. Van Graafieland, through the architect, promised to pay it. This Mr. Van Graafieland denies. On September 14, 1916, Wright, through his attorney, notified plaintiffs of his claim, and that if the same should not be paid within 10 days a lien would be filed against the building. Plaintiffs on the next day notified the surety company in writing of this, and closed as follows: "I am advising you so that you may give the matter your immediate attention." Mr. Van Graafieland also on the same day transmitted a copy of this letter to Charleville. The suit was instituted before the justice of the peace on October 25, 1915. The plaintiffs were both present at the trial, but it was taken under advisement, and judgment was not rendered until December 18, 1916. Charleville was at Arcadia, Iron county, Mo., at the time, and entered his appearance by letter.

Mr. Van Graafieland testified that as soon as the plaintiffs learned of the judgment he went to the office of the bonding company and told Mr. Eggers, its attorney, who said it did not amount to anything, and that they should let the bonding company take care of it, and that if anything happened to refer it to them. They would get after Mr. Charleville, and to forget it. Mrs. Van Graafieland testifies that at about the same time she saw Mr. Myers, the manager of the St. Louis office of the bonding company, and that he told her about the same thing. Both these men were witnesses for defendants, and denied these conversations. Plaintiffs rested easy until Mr. Lee walked into Mr. Van Graafieland's office and demanded possession.

Mr. Herpel, the chief deputy sheriff of St. Louis county, to whom the special execution was delivered by Mr. Taylor, Mr. Wright's attorney, testified of the conversation accompanying the delivery:

"I asked him if he knew of any property of Mr. Charleville. He said he didn't know of any, and he wanted me to execute the writ and sell the property."

The deputy made no further effort in that direction, and proceeded to advertise and sell as directed.

The court found that the price realized at the sheriff's sale is so inadequate as to shock the conscience of the chancellor; that the deeds to Moores and Burke were without consideration, were made and received with full knowledge of all the facts, and for the purpose of assisting Wright to defraud the plaintiffs out of their property. It set aside the sheriff's sale, annulled the three deeds mentioned, and gevested the title in plaintiffs on condition that they should pay Wright the sum total, with interest and costs added, of the amount of the judgment under which he purchased, together with any further amount laid out by him, in connection with the sheriff's sale, with interest.

The foregoing statement indicates the issues presented. The evidence will be referred to in the opinion as necessary.

1. There are certain conceded facts which differentiate this case from the most of those to which we must look for judicial authority. The property involved is not speculative in its nature, but is the home of the plaintiffs. The debt for which it was sold does not represent a duty which the citizen owes to the government as his share of compensation for his protection in both person and property. Nor is it primarily his own debt that is involved, but a liability imposed by law as surety for the real debtor. The law, in the application of its remedies for the correction of all wrongs, seeks to adjust them to the character of the duty involved in each. Where the letter of the law is sought to be used for the infliction of an injury, its spirit frequently comes to the help of the threatened party.

The property involved in this controversy is an urban lot of a little more than half an acre in extent, subject to restrictive building regulations for the purpose of preserving it from unsightly surroundings. It had been purchased by plaintiffs for $6,000 cash, and a home built on it at a contract cost of $11,400, and other improvements had been made to fit it for the use. The evidence convinces us that it must have been worth, on a cost basis, $20,000. It had been incumbered by two mortgages—one for $2,000 and the other for $7,000, the latter...