196 Mo. 358 | Mo. | 1906
is a suit in equity, the purpose of which is to have set aside a sale, under a deed of trust, of certain real estate in the city of St. Louis. Charles Green was the owner of the property. On the 3rd day of August, 1896, he and his wife executed a
At said sale the trustee announced that he would require the purchaser to pay the sum of $500 at the time of the sale. Sigmund Labsap, who was the highest and best bidder, became the purchaser of the property for the sum of $8,025 cash, and the trustee executed a deed, dated May 24, 1901, conveying said property to said Labsap, which deed was acknowledged before a notary public on June 6, 1901, and recorded in the recorder’s office in St. Louis on June 8, 1901.
The evidence showed that Sigmund Labsap and James P. Maginn bought the said property jointly for their own account solely. Labsap subsequently, on June 20, 1901, conveyed an undivided one-half interest to Maginn, and paid for it out of their own funds; Labsap having borrowed on his note, secured by deed of trust on the said property, from the St. Louis Union Trust Co., the sum of $6,500, and said Labsap and Maginn obtained possession of said property about December, 1902; made repairs costing $800; paid taxes due on it for years 1901 and 1902, rented it for $87.50 per month in April, 1903.
On July 8, 1901 (forty-six days after the sale),
This action of July 8,1901, was pending until April 10, 1902, on which date the plaintiff voluntarily dismissed the same. Mr. Simmons, a defendant therein, having died on September 16, 1901, after service of process on him, his executors, Amos M. Thayer and Edgar L. Taylor, appeared and answered, filing a general denial on December 2,1901. The other defendants also filed general denials. It was the petition in this cause, and the entries as to process and pleadings therein which were first offered in evidence by plaintiff on April 18, 1903, when the second suit brought April 10; 1902, came on for trial.
On April 10,1902, plaintiff brought the present action. In this first petition, plaintiff alleges that the conversation and agreements between Charles Green, on behalf of plaintiff, and Samuel Simmons, were to the effect that Simmons announced the liquidation of the Building Company and the calling in of its loans including the Green loan, but that Simmons .individually agreed to procure for plaintiff a new loan for $10,000 on the security of the same property, which would fully pay off all owing on said bond and all taxes and assessments levied on said property to the Building Company; that Simmons on various pretexts delayed making said new loan from time to time, and finally announced, in 1901, his inability to make said loan, on account of the said company’s liquidation and would be compelled to sell said real estate under the provisions of the said deed of trust; that Green claimed such a sale was a breach of the contract between Simmons (individually) and plaintiff, and threatened steps to prevent such sale; that Simmons then, to deceive plaintiff and Green, throw them off of their guard, and retain this property for himself, at an inadequate price, told
Plaintiff dismissed on March 30,1903, as to the executors and devisees and legatees of Simmons.
The joint answer filed April 4, 1903, of defendants Maginn and Labsap, denied all the allegations of the petition, except as thereinafter admitted; set up the expiration of the corporate existence of the Building’ Company, prior to the suit, and named the defendants mentioned in the petition as surviving trustees of said corporation, winding up its affairs; stated their purchase of the property at the sale from Wislizenus, trustee; their payment, in cash, to him of the price; his
On April 9, 1903, all the other defendants filed their answer alleging the Building Company to have been a Missouri business corporation, not a building and loan association; that its charter expired by limitation prior to November, 1900; that said defendants, except Wislizenus, became trustees for winding up its affairs. They deny specifically all the allegations of the petition as to the alleged promise by them, their company or any one on their behalf, to make a loan to plaintiff for any purpose; deny that Q-reen or plaintiff agreed with their company or them for such new loan,
On April 18, 1903, the cause was tried and on the same day the court rendered a judgment, finding the issues in favor of the defendants, dismissing plaintiff’s petition, and adjudging costs to the defendants.
The various conveyances referred to were offered in evidence. It was admitted that Samuel Simmons had been president of the Building Company from its organization to the date of its last meeting, and that he was now dead. The charter of the St. Louis Mutual House Building Company was put in evidence, dated February 22, 1873, to continue for twenty years; also an entry from that company’s minutes of November 30, 1900, reciting the expiration by limitation of the company’s charter and a resolution of the president and board of directors, organizing themselves as trustees, under the provision of section 976, Revised Statutes 1899, to wind up the affairs of said corporation.
Plaintiff offered Mr. Green as a witness, and questioned him as to any conversation with Mr. Simmons concerning the payment of the bond or the negotiations of a loan or any matter connected with the sale of the property under the deed of trust. All the defendants objected to any testimony by Mr. Green as to conversations or agreements alleged in the petition as having occurred between Mr. Green and Mr. Simmons, the latter being now dead, and further, that the rights of de
The court sustained the objection.
The conversation, after the sale, between Mr. Green and Mr. Wislizenus, and the latter and Mr. Kinealy in the absence of Maginn and Labsap, was admitted by the court against their objection, on condition, however, that plaintiff should by future evidence connect them with it, in some way to bind them; which plaintiff failed in any way to do. Mr. Green testified that on the day of sale he met Mr. Wislizenus, who told him, “If you go on any other program than that Mr. Maginn is the purchaser of that property, you will go on a false presumption. Mr. Maginn is the purchaser of that property, and he paid $500 earnest money on it.”
Plaintiff offered no other testimony than that of Mr Green in support of the allegations of the petition in respect to the agreements, as to new loan, and as to the Building Company buying in the property for plaintiff.
Plaintiff offered no testimony whatever tending to show any collusion between Messrs. Labsap and Maginn, or either of them, and the Building Company or its trustees or Simmons; or, that they were its agents, or had, either of them, bought in the property for said company; or that they had at any time any knowledge whatever of the allegations of the petition as to agreements and conversations prior to said sale, between Mr. Green and Simmons or the Building Company.
Mr. Green testified that the property was worth, at date of sale, $24,000. On cross-examination he testified that the house on the property, No. 2113 Pine street, would require $1,500 or $2,000 to put in shape for renting, on the date of sale; that for four or five years prior to the sale it had no tenant; that he valued the ground at $200 a foot, or $15,000; that the neighborhood
Ben Yon Phul testified the ground was worth $175 to $200 a foot, in his opinion, and improvements from $4,000 to $5,000.
S. J. Fisher testified the property was worth between $15,000 and $17,000; he had sold it at auction in 1898 for $14,000.
On defendants’ behalf Mr. Joseph Dormitzer testified to having been in the real estate business forty years, in St. Louis; knew this property for many years; was familiar with values in its vicinity; the property could only have been sold for speculative purposes and would not have been worth more than $10,000; was present at the sale, and bid $7,000, and wouldn’t bid more; had bought and sold property and owned property in that neighborhood.
Henry L. Cornet, for defendants, testified that its fair market value, at date of sale, was about $150 a foot, and did not attach much importance to the improvements on that valuation of $11,250.
Defendant Maginn testified on behalf of defendant to the effect that Mr. Labsap had bought the property for himself and witness, each furnishing one-half of the purchase money; that the purchase was entirely a private venture of witness and Labsap, and that witness, except as purchaser, had, prior to the sale, no connection with the property; no claim or interest in it whatever; that he and Labsap had bought it hoping to realize some profit from the purchase; and on defendants’ behalf he testified as to the expenditures made by him and Mr. Labsap, submitting a list of items under a notice from Mr. Kinealy to do so, which was offered in evidence, and showing over $10,500 actually expended for the property at time of trial.
Mr. Wislizenus testified, confirming Mr. Green’s
This was, in substance, all the evidence in the case.
The first assignment of error is with respect to the action of the court in holding that Charles Green was incompetent to testify as a witness to conversations and oral agreements with Mr. Simmons, former president of the House Building Company and managing head of the trustees in liquidation of said company, to the effect that such trustees or Mr. Simmons himself, on their behalf, would bid in the property at the sale under the deed of trust, he, Simmons, being dead at the time of the trial. The argument is that Simmons was merely the agent of the defendant House Building Company, ’and the death of Simmons did not render Green incompetent to testify as to his negotiations with Simmons concerning the loan. In support of this contention plaintiff relies upon the case of Clark v. Thias, 173 Mo. 628, and 30 Am. and Eng. Ency. Law (2 Ed,), 1046.
In Clark v. Thias, supra, the question was as to whether Martin, a witness who was acting as clerk or agent for Clark & Martin at the time the note in question was taken, was competent to testify in regard to transactions between himself and Mary Larkin in a suit by Clark against Thias, as administrator of Mary
It is contended by plaintiff that the evidence shows that the sale under the deed of trust was purely on credit, and was made in accordance with a secret previous arrangement with the trustee for the benefit of defendants Maginn and Labsap who had no interest in the debt or property. That, to pay the amount of their bid, they made a loan upon the property for $6,500 and paid the amount to the trustee on June 8, 1901, and the balance by Labsap’s check for $1,025. That this was an unfair discrimination in favor of two speculators, arranged beforehand, and was a violation of the trustee’s duty as set forth in the deed of trust, and should have caused the court to set aside the sale, especially when, by reason thereof, the property brought only about one-third of its value.
The trustee in the deed of trust was the agent of both the owners of the property and of the secured debt, and it was his duty to act without partiality towards either of them. He had no authority to do other than to sell the property to the best advantage of. the
It was announced by the trustee at the time of the sale that the purchaser would be required to pay the sum of $500 upon bidding off the property described in the deed of trust. This was done, and on June 8, 1901, the balance of the purchase price was paid, and on the same day the trustee executed and delivered to Sigmund Labsap a deed to the property. .
There was no evidence tending to show collusion between Labsap and Maginn, or between either of them and the Building Company or its trustees, or Simmons, or that they were the agents of and purchased the property for said company, or that they had at the time of the sale any knowledge as to any agreements or conversations, prior to said sale, between Green and. Simmons or the Building Company. Nor was there any evidence tending to prove that the property would have brought more money at the sale but for the announcement of the trustees that $500 would have to be paid by the bidder at the time the property was knocked off to him.
In Goode v. Comfort, 39 Mo. 313, it is held that the deed of trust under which the sale of the property in question was made empowered the trustees to sell for cash, but that they had no authority to superadd any terms which a proper construction of the instrument did not reasonably imply; that sales by trustees had been likened to sales by a master of chancery, and the rule was always to allow the purchaser a reasonable time—a fair opportunity to examine his deed, and to submit it to the inspection of his counsel before he was
In Markey v. Langley, 92 U. S. 142, it is said: “If the power require the sale to be made for cash, and it is made for part cash and part credit, the departure from the power is beneficial to the mortgagor, and the sale is valid.” [Hubbard v. Jarrell, 23 Md. 75.] Further on in the same decison there is quoted, with approval, from the case of Mahone v. Williams, 39 Ala. (N. S.) 202, the following: “In determining upon the approval or rejection of the sale in such cases, the true question to be considered is, not so much whether there has been a literal or technical, as a fair and reasonable, compliance with the terms of sale, and a bona-fide disposition of the property.”
The sale under consideration seems to have been a substantial compliance with the deed of trust, and free from fraud, and the fact that the purchasers did not .pay all of the purchase money for several days after the sale did not make it a sale upon credit. No one was injured by reason of the failure to pay all the purchase money at the time or upon the day of sale, and the sale should not be set aside because of such failure.
It has been many times held by this court that inadequacy of price, in the absence of fraud or unfair dealing, is not a sufficient ground for setting aside a sale under a mortgage or deed of trust, and there is nothing disclosed by the record in this case to take it out of the general run of cases to which this rule is applicable. [Keith v. Browning, 139 Mo. 190; Hardwicke v. Hamilton, 121 Mo. 465; Phillips v. Stewart, 59 Mo.
Onr conclusion is that the judgment should be affirmed. It is so ordered.