*1 1141 еxpress de ute trustee of an trust for the use” of the deceased’s pendent father, C., v. K. Fort Scott brothers sisters. [Jones Co., 178 541, 890, 101 Memphis Ry. 528, & Mo. l. 77 W. Am. c. S. Rep. “Permitting foreign representative a re St. to have 434.] covery all giving which is not to be is not extra administered meaning plaintiff’s territorial within the of the effect to letters question. only rule in A designed prevent foreign rule adminis tration properly of local . . . be to assets applied assets cannot living people are which be administered at all.” [Pearson Ry. 429, v. Co., Norfolk & 286 l. c. Western Fed. 431.] foreign regard right “With representative of a maintain an wrongful jurisdiction action for death in the in which the cause arose, harmony, weight action the authorities are not in but the authority support right L., is believed to to do p. his so.” R. C. [8 765, sec. 48.]
Some of sustaining the authorities our views are v. Robertson Chi cago, Ry. P., Co., 433, St. O. 122 M. & Wis. 99 N. W. 66 L. R. A. Rep. 925; 106 Am. & Memphis St. Cincinnati Packet Co. v. Pikey, Admx., 304; Wabash, Ry. Shacklet, 142 Ind. L. & St. Pac. Co. v. Admx., 44 105 Ill. Am. & Rep. 791; Pearson v. Norfolk Western Ry. supra; Co., Co. Denniсk v. supra; Central Railroad and Ghilain (N. H.), v. Contra, Couture 146 Atl. A. L. R. 553. 65 see Hall Ry. Ry. Co., v. 899; Co., Southern 62 E. Vance S. v. Southern 50 E.S. 860. said,
From what have we it trial follows court should be reversed and the remanded. It cause is so ordered. All concur. Lindsay City Corporation, a Municipal Louis,
Charlotte v. Clark Henry Ernst, Ap ne M. and Sarah Ernst An pellants. (2d)W. S. 906. Two, 4,May
Division 1940. *2 City Wayman, Hicks, and Frances J. E. H. Jno. T. Sullivan of St. Louis. Evans, Ferry, Jr., & Atwood
Anne M. Newell S. Atwood Ernst. Henry Anne M. and Sarah Ernst *3 Ilall <& respondent. Todd for
1145' BOHLING, Equity to set aside a sale made under an execution C. special issued on a benefit judgment; assessment to cancel the sheriff’s- sale; deed made pursuant to said cancel a exe- deed made purchaser; cution tо cancel two deeds of made the execu- trust grantees tion purchaser’s purchase; quiet in connection with said plaintiff, contingent title in and for certain additional relief on controversy. main outcome of the Decree nisi plaintiff, upon plaintiff doing equity. sep- conditioned Defendant’s arate appeals are for disposition. consolidated From the we view take of the case discussion of each of the several issues briefed unnecessary.
In 1922 Sarah Ida in- Jackson was owner of the real estate improved by city volved-—a dwelling lot in the Louis commonly as 6900 known Wise Avenue. Returnable to the December Term, 1922, court, city of the circuit Louis instituted St. *5 proceeding Clayton improvements Avenue, for certain and the damages ensuing assessment of Re- special and benefits therefrom. spondent’s brief, conceding City’s judgment for without lien the special against binding the real respondent, benefits was оn estate respondent equity City states that since must do and the its has has been purchaser execution and and tbe interest costs .judgment, respect with the price, for execution sale issue the credit allowed against real estate the special assessment benefit validity the the to therewith. connеcted moot, we do detail the facts and has become by deed, warranty conveyed said lot and her husband Mrs. Jackson Gutsch, who A. 18,1925, to Eleanora and recorded June June dated three-year a $2500 to secure against the lot a deed trust executed note. dam- ascertain the appointed to Mаy 5, 1925, the Commissioners On improvement for the proceedings benefits in ages special and assessing special benefit report, Clayton Avenue filed their judgment final lot; September and on against said $7.50 and to the ef- report, approving said proceeding in said was entered sum city $7.50, and that said St. Louis recover that fect Jackson, of Mrs. special upon property lien constitute first and thereof, here involved. or to-wit: lot or the owner owners conveyed war- single unmarried, the lot Gutsch, Eleanora A. and George 9, 1925, to M. deed, November ranty dated and recorded general special Lindsay, subject to Lindsay “or” Charlotte C. deed year $2500 aforesaid 1925 and taxes for thereafter Lindsays in 1927. The paid indebtedness or trust. Lindsay, conveyed Clark, of Mrs. Lindsays to Lena mother later conveyed Clark, quitclaim deed, January 10, 1929, Lena and on Lindsay, here. respondent to Charlotte the lot C. afore- special execution, August 2, issued on the
Under dated $7.50, city Louis, Sep- on the sheriff of said 14, 1935, Anne M. temper public the lot at sold made, appellant, for and in executed and delivered to due course lot, purchaser said deed to said which deed was dated sheriff's September 30, 1935, 1935. was recorded October days September 20, 1935, subsequent sale, On six said Mrs. years 1932, Lindsay paid delinquent taxes property on By warranty 1933 and 1934. March recorded March deed dated 7 and conveyed Henry 9, 1936, appellant appellants the lot to Ernst, wife; Sarah husband and of which transaction more herein- Realty after. Miss at Evans then called the officeof the Burian Com- pany, acting agent Lindsay, and, which had been as rental for Mrs. according testimony to the company, of officers of the she had stated acquired deed, sale, presented sheriff’s sheriff’s charge company wanted the and collect to take of the Realty Company thereupon rents. The notified Burian Mrs. Lindsay and this action followed. appellants
While process contend was due service of so as there subject the lot special judgment, the record assessment es- respondent knowledge pro- tablishes have did not- actual *6 eeedings Clayton of Avenue improvement for the or of the execution Realty by prior Company. to her notification the Burian lot to the was in transfer Ernsts effected this manner. Hanger a E. executed two unsecured notes-—-a $3000 $600 One J. by property warranty Mr. Miss deeded note—-to Ernst. Evans Ernsts, being other the recited consideration con- $1 deed paid gave $1. Mr. Ernst Miss Evans him the deed siderations. She gavе back; safe-keeping. it he said for He delivered to her the and he by Hanger. Mr. and executed Mr. Mrs. Ernst executed two notes Hanger, daughter Hanger, deeds of trust on lot to B. of E. two J. Hanger. trustee for of trust to purported as J. E. One deed se- years date; a three principal payable cure note after purported each, other to six one each $100 secure notes of “due Hanger gave month.” Mr. testified that when he Mr. Ernst his gave two notes Mr. him the deeds of that trust; Ernst he did two see any trust; not notes secured the deeds he did not that anything; Mr. owe Ernst that he his from received information Miss Evans; go that not inspect property; hе did out to that Miss brought over; Mr. Ernst after he that found out there was going got to be trouble Evans; some he in touch with Miss that a week about or so after he received the deeds of trust he delivered them to notes, destroyed; Miss Evans and received his two which he gave and that he Miss Evans “two deeds trust with no notes.” Mrs. Ernst testified had never thе property; she seen that her hus- repair work, all odd-job man,” band does kinds of “an ap- and earns proximately week; expected $12 that Mr. pay prop- Ernst to for the erty earnings out of rentals, his and its they that do not own the they in. Mr. Ernst saw live testified he purchased he day it; it but never inspected first, he it that saw he thоught, August, 1936; in willing it; that he pay was to $3600 bought that he speculation; it for that Miss Evans never delivered warranty wife; deed back to him or his that he had the has deed continuously in possession bought place; his ever he since that Hanger when stated $600 he J. E. owed him he misstated his testi- mony ; and that one of deeds of was for $2500 trust and the other for the was difference between $3600. Miss Evans testified' deposition person and in at the trial. following: We take the instituted, she, After suit was in County, gave St. Louis the deeds of a party trust from Wisconsin. She does not remember what she (We received for them. find no consideration for the transaction record.) She not does remеmber the name person or wheth- er man or “I up woman. sent it there [meaning Wisconsin] them.” She does not know the name of the town. At the time of attorney. trial They she held the deeds of trust as were not her property. She had an “it.” still interest in She could tell to looking payment whom she was of her in interest the Evans-Han- up- tеstimony record may be other There ger-Emst transaction. scheme was finding that said transaction to base on which finding the chancellor’s foregoing title; but the sustains cloud the that as parties”; as “straw Hangers acted Ernsts *7 beneficial had the sole Miss Evans and between them Miss trust. the deeds of likewise held lot, and that she clаim to the The chancellor and incidental matters. price sale Of the execution prop the valued Experienced realtors lot worth $5000. nisi found the erty,' $40,00 date, $5000. and at between as of the execution sale purported the property worth Appellant Evans considered the price of' finding execution sale A that the price the Ernsts. to value of the per of the approximately was two cent $85 made. is well within the record sold 225, land con- (Mo.), (2d) 117 S. In v. Powell W. Ellis 226[2] $68.54- for under a $8.50 for $300 sidered worth was sold deed, the sustaining setting aside costs. In a taxes and decree $27.90 than three words, “In was sold for less J., said: other the lot Gantt, of that the consideration per appears Thus it cent of said value. itself, in a fraud in grossly amount, to to inadequate is as $8.50 so ’’ law. and judgment, Miss bid of covered interest costs. Evans’ $85 the say equity motion in Appellants is Missouri ease on or set there no solely ting inadequacy consider an execution sale оn of aside the judgment, and costs. ation where the bid covered the tax may interest This rely upon Mangold Bacon, a court en They be. v. before case 459, 23; 496, 130 W. 237 Mo. (229 banc on three Mo. S. occasions 650; 48, 393) involving judg 141 249 155 and a S. W. Mo. S. W. taxes, etc., of and $1000 ment the sale of land worth to $14.99 They $12.50, equities. direct attention other our to portions opinions Judge the late lamented Lamm on of the the the appeal first the second wherein he stresses fact that con (237 or pay sideration was insufficient to the taxes costs Mo. the 520, 521, 523, 656, 657, 658; l. c. 141 W. l. 229 Mo. S. c. l. c. 34). 491, 492, 494, 130 not a S. W. l. c. It is matter of amaze judge, meeting ment in that so cautious a the that there cоntention no precedent 'was the statement: “Be it so. But if there be (229 492), expressly it is time to make one” Mo. l. c. none should discussion, many instances, limit his particular as in other to facts This is especially apropos equity, involved. of cause in where passion justice in the exercise proper administer nоt afforded permits consider, rigid at law the chancellor to relaxed from rules law, kernel legal particular rather than the shell of the con troversy. Appellants’ position sequitur. involves a non There is affinity judgment, no such between the amount of a tax interest and subject costs and worth of the executiоn upon thereto as necessarily constitute the one criterion for the other. The
1149 judgment, than tax price is less purchase execution fact that upon State or may to establish fraud and costs tend interest n one supporting and ad- so, it becomes a its subdivisions. If establishing the probative factor rathеr than an ditional essential necessary sale. to invalidate inadequacy of consideration (quoting 144 l. c. 657 Mangold Bacon, Mo. l. c. S. W. v. 478, 484, 173, 202, W. v. 201 Mo. 98 S. (Banc), Guinan Donnell “ ‘It citing rule, qualification: authority), states with its always price alone' will inadequacy been held has this court real setting of a under justify not aside sheriff’s sale of estate execution, shock the moral price inadequate unless the is so as to outrage promote sense conscience. courts will interfere justice’ ”; applied qualification the ends facts there arguendo, repeated here, This developed involved. and not with Wright, 286 respect to Missоuri in Van v. authorities Graafieland 414, 425, case, although 468 [3, pass Mo. S. W. That 4]. ing sale, on inadequacy off the consideration the execution *8 $87.50, involved sale for and of judgment the amount of the costs sale; but there made with to the inade respect the observations quacy of the approval consideratiоn been cited in sub have with sequent Elliott, 562, 566, cases. State ex v. 114 90 App. rel. Mo. S. 122, 123, states, right redeem, W. will apply “courts the absent ’1 ordinary judgments. same rule to tax applied sales as to sales under instant case general The does not involve taxes. Con sult, also, 294, Hannibal Brown, 297; & St. J. Rd. Co. v. 43 Mo. Mitch Jones, ell 438; v. 50 McCann, 172, 177, Mo. Davis v. 143 44 Mo. S. W. 796; 795, Siela (Mo.), v. Kneib 176 1052, ; S. W. State ex 1054[1] Nathan (Mo.), 176, rel. v. 229 W. S. 177[2], by other appellants: Uhrig Of cases stressed In v. Hill-Behan Co., 341 851, 860, 412, 417, Lumber Mo. 110 (2d) argu S. W. ment was “the low price,” coupled alleged factors, with other should shock the court; stating conscience of the plaintiffs “the sale price ‘is admittedly inadequate justify so as to the setting not aside of sale’ ground on that Rogers Dent, alone.” In v. 292 Mo. 583, 576, 586(II), 1074, 239 1075, weight, S. W. 1077 in fact [5], practically only testimony probative of value, established that acres, the 40 which sold for was worth an acre. execution deputy
The sheriff testified three sales were conducted 14, on September 1935, prices and resulted in of between $84 аnd This, average $123. price, any does not establish relation be- the price tween any given and the of worth A property. material worth factor —the property the issue of inadequacy —on price is lacking. Furthermore, two or more wrongs unconnected justify do any one wrongs. or all of said Appellаnts’ contention in respect this is denied.
Courts have circumspect been in language their respecting the
1150 ju and execution upon consideration inadequacy of an effect ex of State J., early in the case by Goode, but, as stated sales; dicial 1169, 118 W. 420, 425, S. App. 137 Mo. (1909), rel. v. Innes they diligently searched have thаn their bite" is worse bark “their face their to save nearly always circumstance found some for and case: The sale in instant So, confiscation. preventing while court; respondent, Term, 1935, September at the was made by to seek term, remedy motion had of said during pendency 1122, 82 Mo. Miller, 336 Louis v. [City the sale. to vacate David also, ex rel. v. See State 579, and cases there cited. (2d)W. S. Sanders, Mo. 326 355; ex rel. v. 549, 286 W. State son, 315 Mo. S. party an interested Evans was (2d) (Appellant 76, 30 S. W. 986.] day after Miller, supra.) She viewed Louis v. in St. 1935; took no further but her deed October sale and recorded her transaction ownership until the consummation step to аssert respondent knew found Miss Evans The court Ernsts. trial with the that Miss knowledge had been sold and her had no actual ’ depriving asserting ownership purpose was for the delay in Evans This, well as the remedy law motion. as of her respondent in a motion would result opinion was of such fact that Miss fully aside, supported the record. She testified setting purposely in Louis v. Miller she experience of her St. that on account Term, 1935, of court September expiration until waited adversely making ownership parties her known actually before Lindsay for the permitted Mrs. the rents interested. She collect January November, December, 1935, October, months of ordinary course of February, 1936. This was not in the usual recording deed was ineffective to de of the sheriff’s business. right by timely stroy to relief motion. State respondent’s [Consult Wessell, 610(III), Mo. S. W. ex rel. v. 888[4].] *9 judgment respondent to sustain the presented matters are Other purpose to them. We nisi. It would serve no useful discuss there- instanсe, respondent’s appeal motion to dismiss the fore, for overrule Henry and appellants Sarah Ernsts. direc- is affirmed and the cause is remanded with modify granted respondent decree nisi and the relief tions to base inadequacy price and the actions of defendants upon the issue of Cooley herein West- Evans, Hanger, and Ernsts as discussed. hues, CC., concur. foregoing opinion Boi-iliNG, C., adopted
PER CURIAM: The judges opinion as the court. All the concur.