Wertheimer-Swartz Shoe Company v. Wyble

• Decision Date: 17 November 1914
• Citation: 170 S.W. 1128,261 Mo. 675
• Parties: WERTHEIMER-SWARTZ SHOE COMPANY et al. v. CLEVIE H. WYBLE et al., Appellants
• Court: Missouri Supreme Court

170 S.W. 1128

261 Mo. 675

WERTHEIMER-SWARTZ SHOE COMPANY et al. v. CLEVIE H. WYBLE et al., Appellants

Supreme Court of Missouri

November 17, 1914

Appeal from Pike Circuit Court. -- Hon. David H. Eby, Judge.

Reversed and remanded.

Pearson & Pearson and J. H. Blair for appellants.

(1) The petition does not state facts sufficient to constitute a cause of action. (a) It is not averred that Louis Landau, as trustee, ever paid the purchase price of $ 3 and received a deed from the sheriff as execution purchaser. A purchaser at execution sale acquires no title to the real estate until the deed has been executed by the proper officer. But when it is executed it relates back to the date of the sale, and vests title in the execution purchaser from that time as against the execution defendant, and his privies and against strangers purchasing with notice. Lumber Co. v Franks, 156 Mo. 689; Boyd v. Ellis, 107 Mo 395; Leach v. Koenig, 55 Mo. 451; Porter v Mariner, 50 Mo. 364; Strain v. Murphy, 49 Mo. 337; Alexander v. Merry, 9 Mo. 513; Davis v. Green, 102 Mo. 181; Blodgett v. Perry, 97 Mo. 275. The petition should have set out the details of the alleged trust in Landau, how created and for what purpose, in order to show that he had the right, under the terms of the trust, to purchase the land. The bald declaration that he purchased as trustee is not sufficient. (c) The petition alleges that the deed from Thomas N. Sanderson's executors to Tillie P. Rettke was fraudulent and void. Assuming that to be true, then the title, certainly the legal title, to the land remains in the heirs of said Thomas N. Sanderson, or the beneficiaries under his will, and they should have been made parties defendant in this cause. And besides, if that deed is fraudulent and void no resulting trust could arise thereunder in favor of plaintiffs, as creditors of Gustavus Rettke, and their petition states no cause of action. (2) There is no equity in the bill. (a) The purchase price of 3 cents per acre for the land which sold a few months prior thereto for $ 40 per acre, is so grossly inadequate that a court of equity will not ratify or confirm the transaction. State v. Elliott, 114 Mo.App. 562; Davis v. McCann, 143 Mo. 172; Durfee v. Morgan, 57 Mo. 374; Mitchell v. Jones, 59 Mo. 438. (b) The purchase price of 3 cents an acre is so shocking to the conscience, and so grossly inadequate, as to amount to proof per se of fraud in the sale. Walter v. Hermann, 99 Mo. 532; Knoop v. Kelsey, 121 Mo. 642; Phillips v. Stewart, 59 Mo. 491; Cobb v. Day, 106 Mo. 300; Railroad v. Brown, 43 Mo. 294; Briant v. Jackson, 99 Mo. 598. (c) Inadequacy of consideration, if it be of so gross a nature as to amount in itself to conclusive and decisive evidence of fraud, is a ground for cancelling a transaction. In such case the relief is granted, not on the ground of inadequacy of consideration, but on the ground of fraud as evidenced thereby. Nelson v. Betts, 21 Mo.App. 231; Kerr on Fraud and Mistake, 161 Pom. Eq., secs. 926, 927; Bisp. Prin. Eq. (5 Ed.), sec. 219. We have not been able to find in the books a case of inadequacy of price as gross and unconscionable as the case at bar. (d) The purchase of the land by Louis Landau, as trustee for his co-plaintiffs, in our opinion, could not have had in view but one purpose, and that the suppression of competition at the execution sale between said co-plaintiffs. At least it had that effect. In the absence of such trust or combination either of those plaintiffs would, in order to protect itself, have bid for the land more than the debt of the other. This is self-evident. Inadequacy of price when unreasonable, is evidence of a secret trust, and is prima-facie evidence that a conveyance is not bonafide if it is accompanied with any trust. Kuykendall v. McDonald, 15 Mo. 293. It is now the uniform doctrine that any combination at public or private sale, having the effect of preventing competition in bidding, is against the policy of the law and void. Durfee v. Moran, 57 Mo. 374; Hook v. Turner, 22 Mo. 333; Parker v. Railroad, 44 Mo. 415; 17 Am. & Eng. Ency. Law, p. 980; Wooten v. Hinkle, 20 Mo. 290; Hook v. Turner, 22 Mo. 333; Stewart v. Nelson, 25 Mo. 309; Miltenberg v. Morrison, 39 Mo. 72; Stewart v. Severance, 43 Mo. 322; Durfee v. Moran, 57 Mo. 374; Bailey v. Smock, 61 Mo. 213; Massey v. Young, 73 Mo. 260; Beedle v. Mead, 81 Mo. 297. (3) (a) The court erred in finding and decreeing that the conveyance executed by D. Taylor Sanderson and Robert B. Sanderson, executors of Thomas N. Sanderson, and D. Taylor Sanderson and wife in their own right, to Tillie P. Rettke was fraudulent and void. Creditors can complain only of the fraudulent conveyance of property which is subject to their debts. Burns v. Bangert, 92 Mo. 167. A deed cannot be set aside as fraudulent unless the grantor therein intended thereby to hinder, delay or defraud his own creditors. Parker v. Roberts, 116 Mo. 657. (b) The only right or interest that could have possibly accrued to the plaintiffs by reason of that conveyance was possibly a resulting trust in their favor, if Gustavus Rettke fraudulently applied his own means toward the payment of a part of the purchase price for the land. But the court decrees that deed to be void. That being the case there was no resulting trust, or any other right or interest thereunder accruing to the plaintiffs. The deed being null and void the title remained in the beneficiaries under Thomas N. Sanderson's will, as if the deed had never been made. A void deed is without legal force or effect, ineffectual to bind parties, or to convey or support a right. 29 Am. & Eng. Ency. Law, p. 1065. (c) This is not similar to a case where a person makes a fraudulent deed, and it is set aside. (4) The bill charges only, that the deeds from Thomas N. Sanderson's executors to Tillie P. Rettke, and Tillie P. Rettke to Clevie H. Wyble, and the deed of trust from Clevie H. Wyble and wife to William J. Buchanan, trustee for the Bank of Eolia, are fraudulent and void, and asks that they be so decreed and adjudged. (It does not ask that they be set aside, nor does the court set them aside in direct terms.) The court so decreed and adjudged, and further, went so far as to decree and adjudge that other conveyances were fraudulent and void which are not covered by, or even mentioned in, the pleading, and concerning which no relief is asked by plaintiffs, and under which Tillie P. Rettke acquired title to the land in controversy. The decree or judgment so rendered by the court is not within the issues made by the pleadings. This is reversible error. Spindle v. Hyde, 247 Mo. 32; Schneider v. Patton, 175 Mo. 723. While under the prayer for relief a party may have any relief to which he may show himself entitled, such relief must be founded on and consistent with the allegations in the bill and not such as may be proved at the trial. Roden v. Helm, 192 Mo. 93; Ross v. Ross, 81 Mo. 84; Reed v. Bott, 100 Mo. 62; Irvin v. Chiles, 28 Mo. 576; Harris v. Railroad, 37 Mo. 310; Newham v. Kenton, 79 Mo. 382; McNair v. Biddle, 8 Mo. 257. A decree cannot be based on facts not set up in the pleadings. Rumsey v. Railroad, 144 Mo. 175; Paddock v. Lance, 94 Mo. 283; Muenks v. Bunch, 90 Mo. 500; Newham v. Kenton, 79 Mo. 382; Baldwin v. Whaley, 78 Mo. 186.

Tapley & Fitzgerrell for respondents.

The appellants did not raise the question in the lower court that the petition did not state facts sufficient to constitute a cause of action, either by demurrer or objection to any of the evidence being offered at the trial of the case or by a motion in arrest. When the question is not raised in the lower court, reasonable inference will be indulged in by this court in favor of the petition being sufficient and will be sustained if by fair intendment it impliedly states a cause of action. Miller v. Klein, 160 S.W. 562. In this petition everything is stated that is essential. The appellants did not file a Bill of Exceptions, and consequently none of the evidence is before this court and they stand on the bare record in the case. We think that the case above cited is sufficient. As to the second point: The decree in this case is in accord with the pleadings. Every material fact that is set out in the petition is passed upon by the court. Every fact that is passed upon by the court is referred to in the petition. It has been decided time and time again where a decree is in accord with the pleadings that it is sufficient, and that is all that is necessary as far as the decree is concerned. As far back as the 68 Mo. the courts are found holding to this rule. Cox v. Estep, 68 Mo. 110, and on down to the present date. The petition in this cause alleges that Rettke owned the stock of goods; that the plaintiffs sold him goods for his store and brought suit with attachment in aid, obtained judgment and while the judgment lien existed Mrs. Rettke sold and transferred the real estate. The appellants are not in a position to object to the inadequacy of the consideration. They did not come into court and ask that the deed from Gustavus Charles Rettke to Louis Landau, trustee, be set aside and tender the purchase price paid by Louis Landau as trustee, to the sheriff; nor did they offer to pay the indebtedness existing between Gustavus Charles Rettke and the respondents in this case. If they desire to take advantage of the inadequacy of the consideration they should at least tender the purchase price and what Gustavus Charles Rettke owes the respondents herein. The respondents herein have lost their judgment liens by limitation and if the court should hold that the deed from Gustavus Charles Rettke, to Louis Landau, as trustee, is not good by reason of the inadequacy of the consideration, then the respondents have lost...