186 Mo. 410 | Mo. | 1905
— This is a bill in equity to set aside for fraud a deed from defendant Jones, as trustee, to defendant Shelton, and also a deed from said Shelton to defendant Gibson, to the north half of the northwest quarter of section twenty, in township sixteen, range seven, in Dunklin county, and to have a deed of trust from defendant Thurmond to the plaintiff, on said land, and other lands, declared a lien on said land, superior to defendant’s claim thereto, and to have plaintiff’s deed of trust aforesaid foreclosed and the land sold to satisfy the plaintiff’s lien.
The petition alleges that on December 14,1896, the defendant Thurmond was the owner of the land, and that on that day he gave a deed of trust thereon to defendant Jones, as trustee, to secure to defendant Shelton a note for three hundred and seventy-five dollars, which deed was duly recorded in said Dunklin county; that afterwards on September 25, 1897, said Thurmond executed to plaintiff a second deed of trust on the land, to secure a note for $463.73, which was also duly recorded; that at the time Thurmond gave plaintiff said deed of trust, he promised to protect plaintiff’s interest by paying off the first deed of trust, and in the event Shelton should press the first deed of trust and he, Thurmond, was unable to pay it, he would notify the plaintiff so that it could protect itself in the premises and that plaintiff believed and relied on Thurmond’s said promise and he failed to keep the same; that the land was of sufficient value to pay both of said debts and was good security therefor; that in December, 1899, and January, 1900, Thurmond, Shelton, and the defendant Gibson, “colluded together with intent to hinder, delay and defraud the creditors of said Thurmond, and especially the plaintiff, of its lawful action,
The answer of the defendant Gibson is a general denial, coupled with the plea that he had no knowledge or notice of plaintiff’s agreements with Thurmond, if there were any such agreements, and had nothing to do with the foreclosure of the Shelton deed of trust, and did not know either Shelton or Jones prior to the sale under the deed of trust, and had no conversation with either of them prior to said time; that he is an innocent, bona fide purchaser of the land from Shelton, for a valuable consideration.
The other defendants answered jointly, in the shape of a general denial, with a special plea that the sale of the land was legally and fairly made, and that the land is now the property of defendant Gibson.
The decree of the court set out the first deed of trust to Shelton, and the second deed of trust to plaintiff, and then finds that at the time Thurmond gave the second deed of trust to plaintiff, he, Thurmond, “undertook to protect the interests of plaintiff under its said deed of trust or fully advise plaintiff of any demand which he could not meet or a foreclosure of said deed of trust to W. F. Shelton in the premises. And that afterward the said Ligón Jones on the eighth day of January, 1900, having duly advertised said real estate for sale under said first deed of trust to W. F. Shelton, sold the same to W. F. Shelton, of all of which plaintiff had no actual notice of the proceedings in that behalf, and that said J. A. Thurmond wholly failed to protect plaintiff’s interests or to advise plaintiff of said proceedings and sale, but procured defendant J. T. Gibson, his son-in-law, to attend the sale under said deed of trust on the eighth day of January, 1900, and to pay off the demand due said W. F. Shelton on the day of the sale of said premises, and buy in the same and take a deed therefor in his own name from the
The decree then finds that Thurmond is indebted to the plaintiff in the sum of $517.83 and declares it to be a lien on the land by virtue of the second deed of trust “and under this judgment,” orders an execution to issue and the land to be sold, and if it does not bring' enough to satisfy plaintiff’s debt that the execution be levied upon the other goods, chattels and real estate of Thurmond. The decree then finds in favor of the defendants Shelton and Jones. Prom this decree the defendants Thurmond and Gibson appealed.
As this is a suit in equity, the facts will be stated and discussed in the course of the opinion.
The case stated in the petition is, first, that when Thurmond gave the second deed of trust to the plaintiff he promised to protect the plaintiff by paying the first déed of trust, or, if he was unable to do so, that he would notify plaintiff of any proceeding to foreclose it so that it could protect itself, and that Thurmond failed to do so; and second, that Thurmond, Shelton and Gibson colluded to hinder, delay and defraud Thurmond’s creditors, and especially the plaintiff, by causing the first deed of trust to be foreclosed at an unusual hour of the day, with intent to suppress bidding and prevent competition in bidding and thereby to get the land freed from the plaintiff’s lien, and that, in pursuance thereof, they caused the first deed of trust to be foreclosed, and Shelton became the purchaser for one hundred dollars, when the land was fully worth one thousand dollars, and that Shelton immediately conveyed the land to Gibson, by a general warranty deed, for $384.27, and that Gibson is a son-in-law of Thurmond, and held a confidential relation to him; and that immediately thereafter Thurmond and
And of these, in their order,
I.
Í The first predicate of the petition is sustained by the evidence. The plaintiff’s travelling agent and Thurmond both testified that the latter promised, at the time he gave plaintiff the second deed of trust, to pay off the first deed of trust, or, if unable to do so, to notify plaintiff of any foreclosure proceedings thereunder so that the plaintiff could protect itself, and that he failed to do so.
But neither this agreement nor this failure affects this case in the slightest degree. There is no allegation in the petition that Jones the trustee, or Shelton the beneficiary under the first deed of trust, or Gibson the grantee of Shelton, was a party to any such agreement, or had any notice thereof, and there is not an iota of testimony in the record that such was the fact, but, on the contrary, the uncontradicted testimony is exactly the other way.
The alleged agreement was made long after the first deed of trust was executed and after Shelton’s rights thereunder were fully fixed and vested, and, therefore, it could have no effect upon Shelton. There was not even an attempt to show that Shelton knew anything about it before he purchased it at the foreclosure under the first deed of trust. Nothing further, therefore, need be said of this feature of the petition.
II.
The gravamen of the second predicate of the petition is fraud and collusion between Thurmond, Shelton and Gibson, to foreclose the first deed of trust at an unusual hour, and thereby prevent competition in bidding at the sale, whereby Shelton became the purchaser at the foreclosure sale for one hundred dollars,
There is not a scintilla of evidence in the record to support this charge of the petition. The plaintiff introduced the depositions of Thurmond, Gibson and Jones, and also called as a witness its travelling salesman, who had transacted the business with Thurmond, and also the present sheriff of the county and the clerk of the court, and then offered in evidence certain correspondence between plaintiff and Thurmond, and between Gibson and his agent who looked after the renting of this and other property belonging to Gibson, after Gibson purchased from Shelton. So far from showing that the sale under the Shelton deed of trust was had at an unusual hour, the testimony was that it was sold between the hours specified in the deed of trust; that it was between ten and twelve o ’clock in the morning, and that- it was customary in that county to sell under deeds of trust before the noon hour, and under executions in the afternoon.
Touching the charge of fraud and collusion alleged in the foreclosure of the Shelton deed of trust, the testimony offered by the plaintiff was as follows:
Jones, the trustee, said he advertised the sale and sold the property at the sole request of Shelton; that he knew nothing about the plaintiff’s deed of trust or claim; that he never met Gibson until after the sale under the deed of trust, when Gibson told him he had come to bid on the land, and he told him the land was sold, and that he would have to trade with Shelton if he wanted the land; that Shelton never said anything to him about Thurmond’s financial condition;-that he was living at Dexter, Missouri, at the time, and went to Kennett to conduct the sale, as trustee; that he had no knowledge of any understanding or effort by either Shelton, Thurmond or Gibson, to hinder, delay or de
Thurmond testified that at the time of the sale he was in bad health and had failed in business; that he never had any conversation with Shelton about the plaintiff’s claim, but had tried to.get him to give him more time in which to pay what he owed him, Shelton, but that he refused to do so; that he had met with adversity and was unable to pay and was at the mercy of his creditors, and that he was trying to look after his health, rather than his means, when the sale took place; that he had not “associated” himself with Shelton, or Jones, or Gibson, to hinder the plaintiff in the collection of its debt or to defraud it; that he did not leave Dunklin county or the State of Missouri until February 12, 1900 (the sale took place on January 8, 1900), and would not have left except for his health; that he is now living with his son-in-law Gibson, in Dyer county, Tennessee.
Gibson testified that he was thirty-nine years old; was a farmer; lived in Dyer county, Tennessee, and had never lived in Dunklin county, Missouri; that he became acquainted with the land about two years before the sale; that Thurmond wrote him from Cardwell, Missouri, that it was to be sold on January 8, 1900, and that it was a good investment, and that he was not able to buy it himself, and if he, Gibson, wanted to buy it, he would have to be there on January 8, 1900 ; that he did not know who was selling it, but thought it was the plaintiff, as he knew that it had a lien on it; that he did not know Shelton at the time or that he was selling it until after it was sold; that he thought it was worth from $800 to $1,000, and thought it a good investment; that he reached Kennett on the sixth of January, and made arrangements with the bank there to get the money he might need in addition to what he
The plaintiff’s travelling salesman did not attempt to testify to any collusion. He said that four or five days after Shelton had sold the land to Gibson, he called on Shelton and demanded the right to redeem the land by paying what Thurmond owed Shelton, and that Shelton said he was too late and he could do nothing for him.
The correspondence between plaintiff and Thurmond affords no support whatever to the charge of the fraud and collusion alleged.
J. R. Pool, the agent for Gibson for the renting of the property after Gibson acquired it, testified that Thurmond never told him that the land was his and that Gibson was to collect the rents until he was paid back what he had paid for it, but that he had an “impression from letters and other sources that it is a facthowever. I have no definite recollectionHe
The defendants introduced five other letters from Gibson to his agent Pool, regarding the renting of the property, but not one of them affords any foundation for the charge of fraud and collusion or for any such “impression,” but tend to show that Gibson treated and managed the property as his own, refused to rent it for any long term and said he wanted to sell it.
This was all the testimony in the case that had any bearing upon the charge of fraud and collusion. The charge, therefore, is without a particle of legal evidence to support it, unless the fact that Gibson was Thurmond’s son-in-law was, of itself, evidence sufficient to make out a prima facie case of the fraud and collusion alleged, or else was enough to cast the burden of proof upon Gibson to show good faith in the transaction.
It will be noted that the charge of the petition is collusion between Thurmond, Shelton and Gibson, to defeat the plaintiff’s claim, by having the foreclosure of the Shelton deed of trust at an unusual hour, so as to shut off competition in bidding. The evidence completely negatives that charge, and shows that the sale was legally and properly and openly made, after thirty
Furthermore, th§ record clearly shows that Thurmond had failed in business and had no means, while Gibson was a farmer, with available means, and that the money used to purchase the land was Gibson’s and not Thurmond’s, money, consisting of the money Gibson brought with him from Tennessee plus the one hundred and ten dollars that he borrowed from the bank at Kennett, Missouri.
The sum of the whole matter is, that the foreclosure of the first deed of trust was legally and fairly made, Shelton acquired the land at the sale, and Gibson honestly purchased it from Shelton, and there is absolutely no evidence or remote suspicion of fraud in the matter. The plaintiff therefore utterly failed to prove the fraud alleged.
The decree of the court, however, went further than the allegations of the petition, and found that Thurmond procured Gibson “to pay off the demand due said W. F. Shelton on the day of the sale of said premises and buy in the same and take a deed therefor in his own name from the said W. F. Shelton, the beneficiary in said deed of trust; that the court doth find that the said purchase by the,said J. T. Gibson was for and in behalf of said J. A. Thurmond, and the said J. T. Gibson now holds the said real estate in trust for the said J. A. Thurmond.”
The decree is broader than the issues joined and tried, and in addition finds no support in the evidence. The only semblance of support afforded by the evidence is that when Gibson bought from Shelton the latter made him pay a sum equal to the amount Thurmond owed him, with the expenses of the sale, and also fifty dollars bonus. Of course Shelton would not sell the
There is no merit in the plaintiff’s case. It took a second deed of trust, and relied upon the promise of the mortgagor to pay off the first deed of trust or to notify it if he was unable to do so. He failed in his promise. The first deed of trust was legally foreclosed, and Shelton became the purchaser and sold to Gibson. The plaintiff had all the notice of the foreclosure of the first deed of trust that the law requires, and did not protect itself. The law affords him no relief. The trial court should have dismissed the bill and its judgment must be reversed.
III.
The plaintiff, however, moves to dismiss the appeal for four reasons, to-wit: first, because the judgment was fully satisfied and executed, before the appeal was granted, by the foreclosure of the plaintiff’s second deed of trust, and that the appellants have acquiesced in the judgment and accepted the benefits of it; second, because the judgment was for $517.83, and the appeal bond was for only five hundred dollars, which was insufficient to operate as a supersedeas, because it was not double the amount of the judgment; third, because no abstract of the record was served on the respondent
Bearing upon the first ground of the motion, the parties have filed affidavits and proofs which go to show that within four days after the judgment of May 14, 1901, was rendered, the defendants, Thurmond and Gibson, duly filed a motion for a new trial; that the circuit court did not act on the motion for a new trial at that term, but expected to hold an adjourned term later when it would be acted upon. No adjourned term, however, was held, and the motion was not acted upon until the next regular term. In the interim, while the motion for a new trial was pending, the plaintiff caused its deed of trust to be foreclosed. The notice was signed by the plaintiff and the sheriff of Dunklin county as cotrustees. The sale was had and the property sold to C. L. Keaton for five hundred and sixty-four dollars and twenty-six cents, and a deed was made to him by the plaintiff as trustee, but the sheriff, the cotrustee' named in the notice, did not join in it. At the sale, the defendants notified the bidders that there was a motion for a new trial pending in this case.
This is the basis of the claim that the judgment had been executed and satisfied before the appeal was taken, and that appellants had accepted the benefits of it, and the plaintiff invokes the rule laid down by this court in State ex rel. v. Klein, 137 Mo. l. c. 679, and Aull v. Trust Co., 149 Mo. 1.
The rule of law announced in those cases is, that where a party has recovered a judgment and accepts satisfaction of it, he can not afterwards sue out a writ of error or take an appeal to reverse it. [Aull v. Trust Co., 149 Mo. l. c. 15.]
It is manifest, however, that no such condition is present in this case. The appellants recovered no judg
Moreover, the judgment has never been executed. The judgment ordered a judicial sale of the land. The sale was wholly outside of the judgment, and appears to- have beqn conducted by the plaintiff alone under a notice signed by it and the sheriff as cotrustees. The so-called deed of trust is embodied in the record and is really a mortgage with power of sale. The sheriff is only authorized to sell in the event the mortgagee is rendered incompetent to act. But, however that may be, the foreclosure of the deed of trust, by the act of the parties, after the judgment in the case, was not a judicial sale, nor an execution or satisfaction of the judgment. The plaintiff had asked a court of equity to foreclosure its deed of trust and the court had extended its aid, and ordered the land sold. This contemplated a sale by the sheriff ex-officio and not as a cotrustee, and the attempted foreclosure by the plaintiff after the judgment was wholly unauthorized and of no legal effect. The mortgage was then merged in the judgment.
There is no merit in the first ground of the motion.
There is likewise no merit in the second ground of the motion. If the bond given was not sufficient under the statute to operate as a supersedeas, the plaintiff could have asked the court to issue an execution to enforce it. But no such thing was done in this case. This, however, had no effect upon the defendants ’ right of appeal, for the defendants had a right to appeal even without any bond, and the judgment was subject to review on appeal, notwithstanding it had. been enforced and satisfied, pending the appeal.
The case was set for hearing on January 3, 1905. No showing is made that what purports to be an abstract was not served on respondent at least thirty days prior thereto. But the point is that what purports to be an abstract is in reality a printed copy of the entire record, and it is claimed that it does not comply with the requirements of section 813, Revised Statutes 1899, or with rules 11, 12, 13 and 15 of this court.
The suit is one in equity and comes here upon a certificate of the judgment. What purports to be an abstract of the record contains the pleadings, the plaintiff’s mortgage, the letters offered, in evidence, the .judgment and motions for new trial and in arrest, in full, and the testimony adduced, principally in a narrative form, but to some extent by question and answer. It is a sufficient compliance with the statute and the rules of this court, and is no fuller than required in such a case.
The fourth ground of the motion is that appellants did not serve respondent with their brief thirty days before the day the case was set for hearing. It appears that the printer, who printed appellant’s brief, at their direction mailed to respondent a copy of the brief, in the postoffice in St. Louis on the thirtieth of November, 1904, and that it was properly addressed, sealed, with sufficient postage, directed to the counsel for respondent. Counsel for respondent says he did not receive it until December 6, 1904. All the briefs, motions and notices in this case seems to have been served by both parties in the same way. Under the circumstances the brief was properly mailed in time to have reached respondent’s counsel in ample time, and the ends of justice would not be subserved by penalizing the appellant
Tbe motion to dismiss tbe appeal is overruled, and tbe judgment is reversed and tbe bill dismissed.