I.
The ruling was erroneous which refused permission to introduce the sheriff’s deed to Kelso, and the execution and return thereon. The deed was by law prima facie evidence of the recitals it contained. Without its introduction, plaintiff had no standing in court. And the return on the execution was presumptively true as to the statements therein made, even against strangers.. Burgert v. Borchert, 59 Mo. 80, and cases cited.
II.
No doubt is entertained that it was competent for Stephen Erazee, the alleged bidder, to transfer his bid to defendant Kelso. By mutual consent the bidder at execution sale may transfer his purchase to another, and such other become the recipient of the deed from the sheriff. Gwynne on Sheriffs, 376; Jamison v. Tudor, 3 B. Mon. 357; Frizzle v. Veach, 1 Dana 212.
III.
The heart of this cause lies in two questions: 1st, Whether the machinery of the law was fraudulently used with the purpose of depriving plaintiff of her property, and defendant Young of the benefit of his judgment. 2nd, Whether Kelso was an innocent purchaser.
So far as concerns Erazee, he can lay no claim to that
Here there was gross inadequacy of price. An undivided one-third interest in 440 acres of land, worth $1,000, was knocked off for $47. But notice other vestiges of fraud. Why was Erazee so nervously apprehensive that Gale, the circuit judge, would say that he was “ Crowe’s deputy ?” It does not appear that the circuit judge had ever ordered any purchase made by Erazee set aside. Why then did he anticipate such a result in the particular ease? It seems difficult to refer such forebodings to any other cause thañ a consciousness of wrong committed — a wrong demanding redress. But the reason given above to Kelso by Erazee, when the latter asked him to take the bid off his hands, was not the reason Erazee gave when on the witness stand, for desiring to make the transfer. Then it was because he did not “ want to get mixed up in the courts
But having devoted, for the present, sufficient attention to Erazee, let me inquire: How stands the case with Kelso ? There is, in the first place, no allegation in Kelso’s answer of the affirmative defense that he is a bona fide purchaser without notice. And if such allegation were not wanting, evidence to support it would be. It is to the last degree doubtful when Kelso paid the money for the land. The sale occurred November 28th, and the deed was not executed to Kelso till December 18th, twenty days thereafter. He says: “I think, perhaps, I paid the money when I got the deed.” But he will not say whether he paid the money to Erazee, or to a deputy, or to the sheriff. The latter, however, testifies that his “ best recollection is, the money was not paid on the day of sale; there was some arrangement about it. It was not a year till the money was paid.” If Kelso did not pay the money until after he received notice of such facts as were calculated to put a reasonably prudent man upon inquiry, the payment came too late to afford him any protection. And there is no lack of such facts in the record. He was the buyer of lands, and was in consequence, presumably familiar with
I am satisfied from the foregoing facts and others yet to be related, that Kelso had a sufficient understanding of the whole affair before he paid the purchase money. He is told by Erazee that there were two more intei’ests in the land that would have to be bought, and that this would require a partition suit, and he is also told by Erazee to “ talk with Lowe.” This was evidently after Erazee had talked with Lówe; for from the latter he professes to have gained his information in regard to the interest of the other heirs. And Kelso circuitously and evasively admits that the arrangement to give Lowe half for his services in the .partition suit was effected before the purchase money was paid; because he had previously said that he thought, perhaps, he paid the purchase money when he got his deed, .and he says also, “ I think I spoke to Mr. Lowe about the
The whole matter may be summarized thus : Erazee, the sheriff’s clerk and defacto deputy, buys the land under the hammer of his employer, for a mere pittance. On the same day he “somehow” learns that Young’s attorney in the suit'is Lowe; talks with him; immediately becomes alarmed at the idea of getting “ mixed up in the courts in a partition suit; ” is also instantly seized with a sudden fear that “ Gale ” .will set aside the sale and not even allow him thus to “ get mixed up.” Thus harrassed by two opposing and impending calamities ; thus assailed by two conflicting fears, he bestirs himself to escape the approaching peril, by searching for a transferee. Fortune favors his quest, and at a most auspicious moment whom does he meet but Kelso ? talks with him; offers him his bid without any advance in price; tells him it is “ all right,” worth more than the price paid, and refers him to Lowe, as Young’s attorney. «Kelso talks with Lowe, and after several such talks, the arrangement is effected whereby Frazee is simultaneously relieved of his bid and of his fears, Young of the benefits of his judgment, and Jane Massey of her land! The foregoing circumstances, as well as others of a similar nature disclosed by the record, are sufficient to sustain the charge of mala fides against the defendants Lowe and Kelso.
Fraud is rarely ever susceptible of positive proof, for the obvious reason that it does not cry aloud in the streets» nor proclaim its iniquitous purposes from the housetops. Its vermiculations are chiefly traceable by “ covered tracks and studious concealments.” Cooley on Torts, 475; Hopkins v. Sievert, 58 Mo. 201; Burgert v. Borchert, 59 Mo. 80. And though fraud is not to be presumed, yet it is as legiti
IY.
Relative to Young’s cross-bill — it is impossible to grant the relief he prays. If the sale, in consequence of the above circumstances, was fraudulent, it should not be permitted to stand; “for what fraud creates, justice will destroy.” But the sale will be set aside, and then he will have opportunity to enforce his judgment in the usual way. The judgment will be reversed and the cause remanded, with directions to the circuit court to .enter the proper judgment setting aside the execution sale and any deed or deeds based thereon; to properly adjust the costs, and if necessary to have an accounting to the. plaintiff.