Miltenberger v. Morrison

39 Mo. 71 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

The petition is framed with a view to equitable relief. It is. founded upon a parol agreement affecting the title to real estate. The purport of the agreement, as alleged, was that the defendant Morrison, if she should become the purchaser of the two lots and houses in question at the sales under the deeds of trust which she held against the property, would hold one of the lots and houses as a trustee, or a mortgagee, for the benefit of Peter Wonderly, the grantor in the deeds of trust, with the understanding that he should have time to redeem that lot and house, by reimbursing to her the full amount of the debt and expenses, after deducting the rents and profits arising from the property while it should remain in her possession. It was stated also in the petition, that, after said agreement was made, Wonderly used no efforts or means to cause purchasers to attend the sale and bid on the property, and make it sell for something near its value, and that responsible bidders were present who were deterred from bidding, out of friendship for said Wonderly, upon learning that the defendant Morrison was buying the property for his benefit, and-that the property was bought by her under that agreement.

The suit is brought, by .an attaching creditor of Wonderly (the grantor in the deed of trust), who had become the purchaser of the lot and house in question under the judgment and.execution obtained in his attachment suit; the attachment was levied upon this property after the dates of the deeds of trust, but before the sales in virtue thereof had been made; and his prayer for relief is, that the said Morrison may be required to render a statement of the amount due her, and that, upon the payment thereof into court for her use, the title to said lot and house may be vested in the plaintiff, and for such other and further relief in the premises as to the court may seem proper.

It is apparent that this petition was framed with a view to relief founded upon the agreement only. It does not look for relief on the ground of any secret arrangement and combination between the parties, or others, for the purpose of preventing the attendance of bidders or deterring bidders at the sale, or of stifling competition among bidders, as a means whereby the purchaser was tobe enabled to get the property at a reduced price. It makes no distinct averment of any such arrangement or combination, and it was evidently not intended to be framed with this aspect. There are some statements in it from which it might be gathered indistinctly that this agreement had had some effect to prevent competition at the sale, and some part of the evidence would seem to indicate pretty strongly that such had been the operation of it. But the evidence, on the whole, would seem to have been directed to the matter of the parol agreement, and to have been offered for the purpose of showing that the plaintiff was entitled to the relief for which he prayed. These vague statements concerning fraud in preventing competition at the sale, in view of the main object of the petition and of the relief sought, must be regarded here as mere surplusage.

In reference to the parol agreement as a-ground for relief, it was conceded that it came within the statute of frauds, and could not be enforced in a court of equity. An agreement of this kind must be in writing — Walker v. Locke, 5 Cush. 90; Montacute v. Maxwell, 1 P. Williams, 618; Wildbalm v. Robidoux, 11 Mo. 659.

With regard to the other matter, there is no doubt that a sale of this kind may be set aside and avoided, as between the parties, and a resale of the property ordered, in a proper case, on the ground of a secret arrangement and fraudulent combination among bidders and parties for the purpose of enabling the purchaser to obtain the property at a reduced price.

. Such arrangements are held to render the sale fraudulent and void, as a fraud upon the rights of the vendor and as against public policy — Wooton v. Hinkle, 20 Mo. 290; Neal v. Stone, 20 Mo. 294; Hamilton v. Hamilton, 2 Rich. Eq. 355-79; Phippen v. Stickney, 3 Met. 384; Stine v. Wilkson, 10 Mo. 75. This petition is not framed with a view to such relief, nor is there any prayer for relief of this nature. It may be that in a case where the facts were sufficiently stated in the petition to show that the plaintiff was entitled to such relief, it might be granted under the general prayer, though not specifically prayed for. The petition must contain a plain statement of facts constituting a cause of action, and a demand for relief in accordance with the facts stated in the petition is an essential part of the petition — R. C. 1855, p. 1229, § 3; Meyers v. Field, 37 Mo. 434.

The plaintiff here, by virtue of his attachment and sheriff’s deed, acquired the equity of redemption of the grantor in those deeds of trust, and if the property had brought more • at the sales under the deeds of trust than was sufficient to pay the debts secured, the surplus of proceeds in the hands of the trustees would have been subject to the equitable title and lien acquired by the plaintiff under his deed ; and they would go to him as the legal representative of the grantor in the deeds of trust. 'This would, we think, give him a standing in a court of equity as a party affected by the sales un'der the deeds of trust; and he is therefore in a position to call in question the validity of those sales, on the ground of fraudulent arx-angements and combinations to suppress bidding and stifle competition at the sales. Nor do we think that the judgment in this case would be-a bar to another petition framed with a view to relief on that ground. But this petition does not place matter of fraud in the sales before us here, in such manner as to call for any discussion of the evidence offered as bearing upon this subject.

Exception was taken to the exclusion of the testimony of Peter Wonderly, on the ground that he was a party for whose immediate benefit this suit was prosecuted. This objection was founded upon evidence tending to show that he had made a parol agreement with the plaintiff to the effect that if the plaintiff recovered in this suit, he was to hold the property for the benefit of Wonderly, and was to convey the same to him upon being paid the full amount of his own debt and expenses; that is to say, there was a verbal agreement that he might purchase the property at a price to be fixed in that manner. It is clear that such an agreement as this must be held void as against the statute of frauds, and that it could not be enforced in a court of equity. He trusts merely to the honor and generosity of the other party, and on that he would have to rely. We do not think this agreement could make him in any way a party for whose immediate benefit the suit was prosecuted.

There was no good ground in this for excluding him as a witness. But he was called as a witness, as appears by the record, merely for the purpose of proving the parol agreement relating to the purchase of this property by the defendant Morrison, and nothing more; and for this purpose his testimony was clearly not admissible, for the reason that such an agreement could not be proved by parol evidence. There was no error, therefore, in excluding his testimony. A fraudulent combination to stifle competition among bidders at a sale may be proved by parol evidence. For such purpose we think his testimony would be admissible.

We find no error in the record for which the judgment can be reversed.

Judgment affirmed.

The other judges concur.