Hardwick v. Jones, 65 Mo. 54

Hardwick v. Jones

65 Mo. 54 | Mo. | 1877

Henry, J.

This was an action of ejectment, originally in the Circuit Court of Clay County, for the recovery of a tract of fifty acres of land. It was taken to Jackson Circuit Court on change of venue, and there tried at the October Term, 1878. It is admitted that on the 24th day of April, 1865, Stephen Shrader owned and was in possession of the land; that on the first of May, 1861, two judgments were rendered by the Clay Circuit Court against said Shrader, and on the second day of May, 1862, nine others were by said court rendered against him; that prior to the rendition of these judgments, on the 26th of April, 1860, the State to the use of Clay County recovered a judgment against said Shrader and others for $8,919.60; that at the time of the sale hereinafter mentioned, the Farmers’ Bank of Missouri owned and controlled all of said judgments; that said bank and John W. Reid as its attorney caused executions to issue on the judgments above mentioned, and had them levied on the land in controversy; that it was duly advertised -for sale by the sheriff, Gittings, and sold at the proper time and place, under the executions issued on the judgments of 1861 and 1862. At this sale on the 27th day of April, 1865, said Farmers’ Bank and John W. Reid became the purchasers, at the price of $100, and obtained the Sheriff’s deed for the land. After-wards Thomas McCarty, Darwin J. Adkins, Joseph T. Field and Reid purchased the interest of the bank, and plaintiff claims by purchase from them. At the date of said sale by the sheriff said Shrader was insolvent, and in March, 1868, was duly adjudged a bankrupt, and Samuel A. Vose was appointed his assignee, and as such, by order of the United States District Court for the Western District of Missouri, sold said land at public sale on the 7th day of September, 1869, and defendants purchased it at the price of $2,990. They were informed when they purchased that Reid, McCarty, Adkins and Field had purchased said land at the prior sale. Reid, however, hid for the land at the sale by the assignee, and defendants alleged that they were *58deceived and misled by his bidding into the belief that they were buying a good title. The answer charges that said Gittings, Reid, McCarty, Field and Adkins combined and confederated together to cheat and defraud the other creditors of Shrader and said Shrader ; that the sale under the junior judgment was made in furtherance of such fraudulent purpose, and that at the sheriff’s sale they declared that whoever purchased the land would purchase it encumbered with the lien of the judgment rendered in 1860, and thereby deterred bidders. The replication denied the allegations in the answer except as above stated. At the time of the sale by him as sheriff, Gittings was a stockholder in the said bank, as was also the sheriff, his predecessor, who levied the execution on the land. Plaintiff, to secure the purchase money, $9,000, which he agreed to pay for the land, executed a deed of trust, conveying the same to A. J. Calhoun, and the condition was broken when this suit was instituted by the failure of said plaintiff to pay said money at the time named in said deed of trust. The land was at the time of sheriff’s sale worth $10,000. The Court tried the case without the intervention of a jury and its finding and judgment were for plaintiff, and defendants have brought the cause here by writ of error.

i. sheriff interesttionof: coroner.

I. It is contended by plaintiffs in error that the levy by the sheriff, F. R. Long, he being a stockholder in the bank, as also the sale by Gittings as Sheriff, lie being likewise a stockholder m the bank, rendered the sale on the executions void, and in support of this position we have been referred to numerous authorities, which we have carefully examined and find that they do not sustain the appellant. Bingo v. Binns, 10 Pet. 269, decides that an agent to purchase cannot buy for himself; Oliver v. Piatt, 3 How. 333 that a trustee cannot convey a title discharged of the trust to a purchaser with notice of the trust; 47 Ills. 114 that one acting in a fiduciary capacity cannot purchase for himself the property. This was a sale of real estate by an administrator who pur*59chased or procured its purchase for himself. 11 Foster (N. H.) 70, 9 Barr 297, 4 Howard 503, are to the same effect.

„ TT,m„1T OATT,. sheriff interested,

II. In the case at bar, Gittings, the sheriff', was neither the purchaser nor interested in the purchase. That the bank in which he was a stockholder purchased, did not constitute the sheriff' a purchaser: Hnder a statute of Massachusetts, which substantially provided that no sheriff who was a party to the suit should serve process therein, it was held that a sheriff who had stock in a plaintiff' bank was not a party, and could serve- the writ, 4 Pick. 405. The same was held in Adams v. The President, etc. of Wisconsin Bank, 1 Greenl. rep. 329. The statute was similar to that’ of Massachusetts. The court distinguishes between stockholders in a banking institution and the inhabitants of towns, which in that State and in Massachusetts are quasi corporations. “ It is well known,” says Mellon, J., “that all judgments against quasi corporations may be satisfied out of the property of any individual inhabitant, but an execution against a banking company, or any other proper aggregate corporation, cannot be satisfied except out of the corporate fund.” The same distinction is recognized in the Massachusetts cases cited in the briefs of counsel, and those relied upon by appellants were suits against towns. See. 3 page 284 Wagner Stat. provides that the coroner shall execute writs and precepts, and perform all other duties of the sheriff when the sheriff" shall be a party, or when it shall appear to the court out of which the process issued,- or to the clerk thereof, in vacation, that the sheriff is interested in the suit, related or prejudiced against any party thereto, or in any manner disqualified from acting. It is clear that neither Francis R. Long, the sheriff who made the levy, nor Gittings, the sheriff who sold under the execution, was a party to the suits, of the bank versus Shrader, and the existence of either of the other facts, which would have devolved upon the coroner the duty to officiate, not having been found by *60the court, or the clerk in vacation, it would hardly be contended, seriously, that in a collateral proceeding the sale could be attacked and defeated by proof that one of those facts existed at the date of the levy or the sale. The relation of trustee and cestui que trust does not exist between a corporation and its stockholders. Angel and Ames on Corporation, sec. 13. If it did, we are at a loss to perceive how it would avail appellants here.

3. ejectment: outstanding deed of trust.

III. Appellants contend that plaintiff was not entitled to a judgment, because there was an outstanding deed of trust on the land, and at the date of the . trial the debt which it was executed to secure was due and unpaid. A mortgagee, or trustee, or one claiming under him, could make that defence, but not a stranger to the mortgage, holding adversely both to the mortgagor and the mortgagee. This bas so often been decided by this court that it has ceased to be an open question. Woods v. Hilderbrand, 46 Mo. 284; Johnson v. Houston, 47 Mo. 227. Defendants have no connection with the mortgage, but are claiming against it.

4. Erato, fi. land : conflictnig claims to.

*61 6. ejectment: conveyance.

*60IV. The allegations of fraud were not established by the evidence. In fact, what by the answer is charged as such, does not constitute fraud. The bank had a perfect right to have the land sold under the junior judgments, and although Reid may have said that a purchaser would buy under that sale subject to the lien of the oldest judgment, he told the truth, for that, we think, is the law. He also had a right to bid at the assignee’s sale, and defendants cannot say that they were misled by Reid bidding, into the belief that they were purchasing a good title, and that Reid and his associates had none, for they were then and there told, as one of them testifies, that Reid and the bank owned that land. They bid to purchase peace, and had a right to bid and buy to avoid the law-suit with the assignee’s grantee, <with-on£ forfeiting their previously acquired right, to a party who, all the circumstances show, knew *61what prompted Reid to bid. It is a matter of no consequence whether plaintiff, Hardwick, was a purchaser for a valuable consideration or not. He certainly has as good standing in a court of equity as his grantors would have, and we have seen nothing in the record to invalidate their title, if they instead of Hardwick were plaintiffs. "Whether a purchaser for a valuable consideration or not, his conduct in the whole affair is meritorious, for he is endeavoring to save out of the wreck of their father’s fortune- something for Shrader’s children.

Judgment affirmed.

All concur, except Sherwood, J., absent.

Aeeirmed.