70 Mo. 505 | Mo. | 1879
This was a petition filed in March, 1874, to transfer to the plaintiff a title acquired in October, 1863, by the defendant to two lots m the town of Milan, in Sullivan county, on the ground of an implied trust growing out of a breach of an agreement made previous to the sale. The plaintiff' was security on a note given to defendant in 1861, for $197.29. This note was sued on, and in Alarch, 1863, a judgment was rendered against plaintiff for $235.30, and $13.70 for costs, and the plaintiff, the petition alleged,
In regard to the statute of limitations, the case of Rogers v. Brown, 61 Mo. 187, which has been cited in support of this position, does not apply to this case. That was a case of a deed in fraud of creditors, fraudulent in its inception, and the bar of ten years was held to run from the date of filing the deed for record. It is not pretended that the deed to Stone was fraudulent; on the contrary, the purchase by Stone at the sheriff’s sale and the deed he received for the lots were, as the plaintiff avers, made at his request. Whether there was such a lapse of time, after the sale and before any offer to redeem as courts of equity will regard as a bar, will be considered in our examination of the first point.
The plaintiff, Gillespie, testified: I was security to the defendant, Martin Stone, on a note given by Owen Wilson. Just after I left here, at the beginning of the. war, Stone began a suit on the note against me by attachment, and attached the property here sued for. I came back before judgment was rendered, but did not defend the suit. I was here when the property was sold, and went to Stone and told him I did not have the money to pay him, and that I wanted him to bid in the property and hold it until I could pay him his money and pay the debt, and that if I never got the money he could keep it. He agreed to it and bought the-property, and under that agreement I kept others from bidding. Others told me that they would bid, but that I kept them from it. I offered to settle the matter with him, and he talked in different ways about it. In 1868,1 told Stone I wanted to fix up the matter and try and pay him, and he told me I had no right there. In 1871,1 offered to arbitrate the matter, but Stone refused, and I brought suit. The property was worth from| $700 to $1,000 at the time of the sale. The rent of the' property was worth $60 a year. On cross-examination, the
The defendant, Stone, testified : There was no agreement between Gillespie and me for Gillespie to have the property back, and no arrangement made to keep any .one else from bidding. - Gillespie told me that he could not raise the money, and that if I would give the amount of my debt for the property he would not bother about it; that he would rather I would have the property than any one else. The judgment under which the sale was made was rendered in this court in March, 1863, and the sale was at the October term of the same year. Dr. Sands had a judgmeut which was also a lien on this property, and I would not agree to give my debt for the property unless Gillespie would arrange to have the lien of Dr. Sands’ judgment discharged. I did not say to McDuff that I was going to give Gillespie three months to redeem the property in. I had no talk with him about it before the sale. After the sale, McDuff, who was then drinking very hard, spoke to me about buying the property, and I said to him that Gillespie and I had been very good friends and that I would let him have the property cheaper than any other
As it is obvious that upon this testimony the plaintiff failed to establish his case upon any of the four points involved, to which we have referred, since the two witnesses contradict each other upon each of these points, I will add here, before considering the weight of all the testimony together, the evidence of the other witnesses in the case. W. T. Hodge, on behalf of the plaintiff,.testified: I know Stone and Gillespie, and was present at the sale. I do not remember of having any conversation with Gillespie about not bidding on the property. I had, a conversation with Stone on the day of sale. I told him I would give more than the debt for the property. Stone asked me if he bid it off, if I would take it off his hands. I told him I would. After the sale Stone never came around to see me, and I never went to see him about the matter.
A. S. McDuff, a witness for plaintiff, testified: I was living in Milan in 1863, and have resided here ever since. I know the property in controversy. I spoke to Stone about buying the property some time before it was sold. I said I would give more than the debt for it. Stone said he would buy it at the sale and let me have it for his debt. After the sale I spoke to Stone about it, and he said he was going to give Gillespie three months to redeem it in; that
Oliver P. Phillips was next sworn by the defendant, and testified: I was sheriff when this property was sold, and made the sale ; the sale was an open one .and made in the ordinary way. Stone bid the amount of the debt and costs, and paid the bid; the debt was going to him.
Judge G. D. Burgess testified: I was present at the sheriff’s sale in this case; the understanding between Stone and Gillespie was that Stone was to make the property bring the amount of his debt against Gillespie. Here the defendant rest.
The plaintiff then introduced Dr. J. E. Nelson, who testified that the rents of the property had been worth $6 per month for the last two years. J. M. Swallow testified that the rents of the property had been worth $8 per month for the last four years. The plaintiff, in his own behalf, further testified that he told Stone, the defendant, that he, Gillespie, would pay off and release the property from the Sands judgment, which he, Gillespie, did pay off and release afterwards. This was all the evidence offered in the case.
In regard to the existence of the agreement claimed in this case, the direct proof is necessarily confined to the statements of plaintiff and defendant, as no one else was present as a witness of it. The statement of plaintiff is : “ I wont to Stone and told him I did not have the money to pay him, and that I wanted him to bid in the property and hold it until I could pay him his money and pay the debt, and that if I never got the money he could keep it. He agreed to it and bought the property.” The defendant says : “ There was no agreement between Gillespie and me for Gillespie to have the property back, and no arrangement made to keep any one else from bidding. Gillespie
I confess that I have been unable to find evidence having the slightest tendency to confirm the'plaintiff-’s statement of the agreement. The only witness who testifies on the subject is McDuff, who says he spoke to Stone before the sale, and told Stone ho would give more than the debt for the property, and after the sale he again spoke to Stone about it, who said “ ho was going to give Gillespie three months to redeem it in; that it was a hard debt on Gillespie.” This surely is no confirmation of the agreement claimed and sworn to by plaintiff, for the reason, first, that the latter was an agreement allowing a redemption in an indefinite length of time; and, second, because Stone did not say that there was any agreement at all between him and
I will, however, pass by this point and assume that the agreement stated in the petition was proved, and proceed to consider the evidence on the second point. The existence of such an agreement as is charged is of no importance, unless by consent or connivance of the defendant, it was used to deter and did, in fact, deter outside bidders and thus prevented competition, for though a breach of such an agreement might of itself render the purchaser obnoxious to the code of honor, yet there being no consideration for it, to bring it within the jurisdiction of a court of equity, it must be accompanied with the fact that its existence prevented competition, and thus operated as a fraud upon the debtor, in which the purchaser and creditor participated, and this fraud is, in short, the basis of the trust which equity implies in such cases. The testimony of the plaintiff on this point is: “ Under that agreement I kept others from bidding; others told me that they would bid, but that I kept them from it.” The testimony of the defendant is : “ No arrangement was made to keep any one else from bidding.” There is really no contradiction in these statements, for plaintiff does not say that the defendant was at all aware of what he (the plaintiff) had said to others, or that any arrangement was made between them on that subject. One would think that on a point of such importance the plaintiff would have had some of the persons to whom he spoke summoned as witnesses. No such witness, however, was produced, if the record before us contains all the evidence.
But assuming- that a general impression prevailing among the crowd who attended the sale, however produced. '
Thirdly. The market value of the property purchased is of great importance in cases of this sort, since a great disparity between such value and the price at which it is bought has a very material bearing with a court of equity in reaching conclusions where evidence on the main points is inconclusive. And yet there is not a particle of testimony on this point from any witness on either side, except that given by the plaintiff and defendant. The plaintiff says the lots were worth, in 1863, from $700 to $1,000. The defendant says they were worth between $200 and $300. It is natural for a proprietor of land or lots, in a village, town or city to over estimate their value, and his opinion on such a subject would be an unsafe guide. It is the result of every one’s observation that the owner of such property will fix a price on it, which he is himself aware he could not get from a purchaser at private sale, and much less when sold involuntarily under the hammer of the auctioneer. Hence, there is a class of persons whose business it is, in cities especially, to negotiate sales of real estate, whose opinions from their opportunities of being informed are usually relied on as important testimony on such matters; and where no such profession is practiced, intelligent neighbors, would be more likely to know the market value than the proprietor.
Some evidence was given in this ease in regard to the value of this property at the trial and for three or four years previous, but that had no tendency to throw any light on its value in 1863, twelve years before. "We know as a matter of history, that the value of such property in Milan, as well as elsewhere, was in a depressed condition
Fourthly. Assuming the agreement to have been as stated by the plaintiff', it must be understood as giving to him a reasonable time within which to redeem. No general rule has ever been attempted to be established as to what is a reasonable time in such cases. In this western country and in such a town or village as Milan was in 1863, great changes in the value of real estate may be expected in very short periods. In Tatum v. Holliday, 59 Mo. 426, it was observed that “where a constructive trust follows a sale and'results in favor of parties, they must commence proceedings to redeem within a reasonable time;” nine years after the sale was held not to be such reasonable time. In the present case the suit was instituted ten years and six months after the sale. The statement of the plaintiff in regard to his conversation with defendant in 1868, is too vague and unsatisfactory and indefinite to form the basis of a conclusion that an offer to redeem was then made. He wanted, to use his own language, “to fix up the matter and try and pay him.” That too, is contradicted by the defendant, who swears that Gillespie never mentioned the matter to him till shortly before the suit was brought, which was six years after-wards. And if the plaintiff was right in understanding the defendant as denying his right of redemption, why