120 Mo. 665 | Mo. | 1894
This was- an action of ejectment to recover eighty acres of land in Sullivan county. The petition as first filed contained one count in the usual form. Before the return term of the writ, the plaintiff filed an amended petition, the first- count of which sets out the plaintiff’s title ' and other matters, and prays for equitable relief, namely, that two deeds, one from the sheriff to Edward Clevenger, and the other from Clevenger to the defendant, be set aside and for naught held; the second count is the same as the original petition, that is to say, a count in ejectment. At the return term the defendant moved to strike out the amended petition, because it set up a new and different cause of action from that stated in the original petition, which motion was overruled, and the defendant excepted. Defendant then filed answer to both causes of action. They were both tried at the same time by the court, and the court rendered a decree setting- aside the two deeds, and gave judgment for plaintiff for possession on the second count.
2. On the second of April, 1881, William J. Hutchinson executed a deed, whereby he conveyed the eighty acres in question to Mr. Moberly in trust to secure a debt of $550 due to Mr. Haley. The land was sold under this deed of trust on the fourteenth of March, 1885, and Samuel 0. Hutchinson became the purchaser. It is alleged in the equity cause of action that Samuel 0. purchased the land for his brother, William J. Hutchinson, and that Samuel 0. never had ■any interest in it, save the bare legal title.
When Samuel C. Hutchinson purchased the land on the fourteenth of March, 1885, at the trustee’s sale, he made a temporarv loan to raise money to pay the-purchase price. On the Test of May, 1885, about a month and a half after that purchase, he conveyed the same-eighty acres to Mr. Darrow in trust to secure his coupon bond for $600, payable to James W. Morrison. He-used the money thus raised in paying off the temporary loan before mentioned. Subsequently and on the-twenty-second of February, 1886, he conveyed the-eighty acres in question and another eighty acre track to the defendant James S. Herrington for the consideration of $2,500. As a part of this consideration, Herrington assumed and agreed to pay the $600 debt secured by the before mentioned deed of trust to Darrow, and also a $700 debt secured by a deed of trust on the other eighty acres. The difference between these two debts and $2,500 was paid in cash to Samuel C. Hutchinson, who paid the difference between the $600 debt and the purchase price of the eighty acres in question over to his brother William. The defendant. Herrington made the purchase of the two eighties from Samuel C. Hutchinson by and through his uncle, Edward Clevenger, who was the agent of the defendant, in making the purchase. Defendant paid the $700 debt as he had agreed. He also paid the annual interest on the $600 debt secured by the deed of trust to Darrow
Samuel C. Hutchinson made default as collector for the first term of office to the amount of about $12,000, and on the fifth of November, 1888, the state ■auditor issued a' distress warrant against him and the sureties on his bond for that amount. The sheriff levied this warrant upon and sold the two eighty acre parcels of land on the eighth of February, 1889, and Edward Clevenger became the purchaser at the price of $100 and received a sheriff’s deed. In June of that year he conveyed both parcels to the defendant, James S. Herrington for a recited consideration of $1,500. It is these two deeds which the plaintiff had set aside under the equity cause of action. The averments made in the petition for that purpose are that Clevenger and the defendant for the purpose of cheating and defrauding the plaintiff out of the $600 debt which the defendant had agreed to pay, made an agreement whereby Clevenger was to and thereafter did purchase in the land at the sale under the distress warrant and then convey it to defendant.
After these transactions had been completed the defendant Herrington declined to pay the $600 debt held by plaintiff, secured by the deed of trust from Samuel C. Hutchinson to Darrow as trustee, and because of such default Darrow sold the property in September, 1889, and the plaintiff became the purchaser.
Two issues of fact still remain to be considered: First, did Samuel 0. Hutchinson purchase the eighty ■acres in question at the sale made by trustee Moberly ■on the fourteenth of March, 1885, for himself,- or did he purchase and hold the same in trust for his brother
As to the first of these issues, the evidence shows that William J. Hutchinson, the grantor in the Moberly deed of trust, had no means and was in destitute circumstances, and could not pay the debt. He says his brother purchased the land for him and afterwards sold it to defendant Herrington at his request. Samuel testified that he purchased the land for his brother William; that to pay the purchase price he made a temporary loan, and in a month or two paid this loan by getting the $600 from Morrison and securingMonison by the Harrow deed of trust on the same land. When he sold it to defendant he paid the cash received over to his brother. Says he used no money of his own in making- the purchase. This evidence shows clearly that Samuel simply purchased and held the land for his brother. The only evidence opposed to this conclusion is that of Edward Clevenger. He says Samuel C. Hutchinson claimed to bev the owner of the land; “that the title was in him,” but he says he “knew the land matter was all mixed up between Samuel C. Hutchinson, his father and brother William.”
As bearing on the other issue of fact it appears the defendant purchased the • two eighty acre tracts from Samuel C. Hutchinson through his uncle Clevenger. Clevenger says he, as agent for defendant Herrington, assumed and agreed to pay the $600 debt on the eighty in question and the $700 debt on the other eighty. As to the sheriff’s sale he says: “I got my nephew (Her-rington) to move out from Pennsylvania and buy this land and I didn’t want to see him have any trouble over it. I was advised to bid it in. I bid in both
Now,- Mr. Clevenger says he did not want his nephew, the defendant, to get into difficulty about the land, and this statement is perfectly reasonable; for he had purchased the land for his nephew. But this statement cannot be reconciled with that made in almost the next breath, namely, that he purchased in the land at the sheriff’s sale for and on his own account and then sold it to his nephew. ' They both knew it was advertised for sale under the distress warrant, took advice as to the best way out of the difficulty, and were both present at the sheriff’s sale, the defendant taking no steps to' protect his own interest according to his statement. The evidence of Clevenger that he bought the
With this result as to the facts little need be said as to the law of this case. As Samuel 0. Hutchinson simply held the legal title to this land and had no beneficial interest in it, a sale of it under an1 execution against him would transfer no interest whatever. 1 Freeman on Executions [2 Ed.], sec. 173. For a like reason the bond given by Samuel C. Hutchinson as ex officio collector did not become a lien on the land.
Nor can the defendant say he is a purchaser under the distress warrant without notice that Hutchinson had no interest in the land. In the first place we are satisfied that Clevenger knew the land was in fact the property of William Hutchinson. Clevenger was the agent of the defendant in the purchase of the land, and notice to him was notice to the defendant. In the next place' the purchase of the land by Clevenger at the sheriff’s sale and the transfer of it to the defendant was a mere contrivance between the two to cut out the plaintiff’s deed of trust. The defendant gained nothing by these manipulations. As to the deed of trust he stood after the sheriff’s sale and deed from Clevenger to him just where he did before the sheriff’s sale, that is to say, in duty bound to paythe$60Q debt. The trial court, therefore, properly set aside the sheriff’s
3. During the trial the plaintiff put in evidence the bond given by Samuel 0. Hutchinson to James W. Morrison for the $600, secured by the deed of trust from Hutchinson to Darrow, and dated the first of May, 1885; also a writing purporting to be an assignment of this bond by the administratrix of James W. Morrison to Mary E. Morrison, executrix of William J.“ Morrison, and a writing purporting to be an assignment of the bond by Mary E. Morrison, executrix of William J. Morrison, dated the twenty-seventh of June, 1888, to the plaintiff John H. Morrison. The defendant objected to both of these assignments; to the first, because there was nothing to show when it was made and because there was no evidence to show that the person who signed it was the administratrix of J ames W. Morrison; to the second, because it did not appear that Mary E. Morrison was the executrix of William J. Morrison. These objections were overruled and defendant excepted.
The above evidence was introduced in connection with the deed to the plaintiff, executed by the trustee, Darrow. This trustee’s deed states that the sale was made at the request of the legal holder of the bond, and this recital is prima facie evidence of the recited fact. R. S. 1889, sec. 7103. As there was no evidence to contradict the recital it is immaterial whether the assignments are in or out of the case. If improperly admitted, the admission of them does not affect the result. The judgment and decree are, therefore, affirmed.