23 W. Va. 177 | W. Va. | 1883
In September, 1881, the plaintiff, John W. Corrothers, filed his bill in the circuit court of Marion county, in which he set forth and exhibited a number of deeds of trust executed by the defendant, AlpheusP. Harris, on a tract of about one hundred acres of land in said county, to secure the amounts specified in said trusts. He charges that one of said deeds was executed to secure a debt to him, consisting of two notes one for five hundred and thirty dollars with interest and the other of five hundred and seventy-five dollars with interest, and that said Harris was insolvent and owned no property
The plaintiff charges that “said sale was not only irregularly, unlawfully and improperly made by paid trustee, but that the same was in fact fraudulently and wrongfully made, as was also the deed thereunder to said Carney, for the causes and facts hereinafter stated; and that said trustee Hayden and the said Cornelius B. Carney knowingly and intentionally participated in said frand, in order to cause said land to sell for less than it was worth, and for less than it would have sold for at a fair sale, and thereby hindered and prevented this plaintiff from realizing or making his said claims or debts out of said land, as he otherwise certainly would have clone; and the plaintiff is now informed and believes, that in order to consummate said fraud and wrong on him, the said trustee, Hayden, has now in some informal way ascertained the amounts of the said debts and claims against said land of prior lions to the plaintiff’s trust-liens and in fact claims to have paid them in full, but whether rightfully so .ascertained and paid, this plaintiff has no means of knowing .•and does not in fact know, and leaving in the hands- of the trustee, of the proceeds of said pretended sale, as he is informed, about two hundred and forty dollars, applicable to the plaintiff’s first deed of trust, but of which he has received no part.”
The facts upon which the plaintiff relies to fix the charge -of fraud on the said trustee, Hayden, and the said Carney, are substantially as follows: “That the plaintiff on learning that the land was advertised for sale under the trust-deed of the 6th of February, 1878, and of the time said sale was to take place, he knowing that he could not attend in person at said sale owing to pressing and important business down the
Plaintiff does not know whether Carney informed the .trustee, that he was bidding for Watson, but said Watson made known to the trustee, soon after it was sold, that Carney had bid the land in for him, to which the trustee assented, and Watson made arrangements with the trustee for .the payment of the purchase-money. But in utter disregard ■of this arrangement and in fraud the said trustee received from Carney the said one thousand dollars, aud made him a ■deed for said land; that but for the arrangement between the trustee and Carney, the said land would have brought nearly ■or quite double the sum for which it sold. Plaintiff agrees .in his bill to pay one thousand five hundred dollars, for the land, if it is sold again.
The trustee, Hayden, denies all fraud and misconduct on his part. C. 13. Carncv answered the bill, in which he denies all fraud and everything charged affecting the good faith of his purchase. Depositions were taken, and on July 24, 1882, the cause was heard on bill, answers, replications, exhibits and depositions, and the plaintiff’s bill was dismissed with costs.
Upon a careful consideration of the bill we are compelled to say, that, if all its allegations are true, the plaintiff does not commend himself to a court of equity, which lov.es justice and fairness. According to the plaintiff’s claim what he and his agent, Watson, agreed to do but failed to accomplish, was a selfish scheme to prevent bidding at the trust-sale and to acquire the property at an inadequate price. The poor owner of the land was left entirely out of the case, his interests were not only not regarded, but according to this claim were plotted against. If the allegations of the bill
In Troup v. Wood, 4 Johns. Chy. 254, it was held, that an agreement by the owner of the execution with certain persons to prevent the usual competition at a sheriff’s sale, and in order to have a small balance on the execution for the purpose of seizing other property of the debtor, is fraudulent; and the execution is deemed in law to be satisfied, there having been lands seized on the execution amounting in value to a far greater sum than the debt, and which in consequence of such fraudulent agreement sold for mere nominal prices. (Jones v. Caswell, 3 Johns. Cas. 29; Cocks v. Izard, 7 Wall. 559.)
But this ground of relief is denied in the answers of the defendants, Carney the purchaser and Hayden the trustee; and we think the proof fails to support the allegations of the bill. The plaintiff in his deposition repeats, the allegations of his bill as to the arrangement he made with Watson. Watson in his deposition substantially corroborates it and testifies substantially to the allegations of the bill with reference to the arrangement he made with Carney. Hayden both in his answer and deposition contradicts Watson in most he says, but says that when he knocked the property down to Carney, Watson claimed it was his bid; but that he had no evidence, that it was his bid, and after consultation with an attorney and being advised, that he would have to make the deed to the person who bid for the property, if he insisted it was his bid, he accordingly executed the deed to Carney. He denies advising Watson to bid but one thousand dollars. Carney in his deposition, as in his answer denies every charge imputing any wrong conduct to him.
The allegations of the bill therefore fail for want of proof.
It is alleged in the bill, that the property sold for a grossly
There is no error in the decree of the circuit court, and it is affirmed.
Aeeirmed.