| Mo. | Oct 15, 1884
This is an action to recover from the defendant the amount alleged to have been bid by him for certain real estate sold in the name of Nicholas Springer and others at- public auction. The answer tendered the general issue, and further pleaded that at said sale false and fraudulent bidders, known as by-bidders, through the1 connivance of plaintiff’s testator, were present, and that false representations were then and there made by vendors, by reason of which defendant was misled into making a bid at said pretended sale.
On a trial before the court, without a jury, the court found the issues for the defendant, and dismissed the petition. From this judgment plaintiffs appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed. From this last judgment the defendant prosecutes this appeal.
I. The statute of frauds is invoked in argument by the defendant. The court of appeals held that “the statute of frauds is not in the case at all because it is not pleaded.” We cannot 'assent to this proposition. The petition avers a contract of sale respecting real estate. It is ’ not averred whether the contract is in writing or not. The presumption, however, in such case is, that the contract is such as the law recognizes. If it appeared on the face of the petition that it was not in writing, duly executed, the petition would be demurrable. This fact not so appearing, the defendant, to avail himself of the statute of frauds, must raise the issue by answer. But it is not necessary that the answer should, in so many words, plead the statute eo nomine. 1 £ Where the defendant in his answer denies the contract, it is not necessary for him to insist upon the statute as a bar.” Wildbahn v. Robidoux, 11 Mo. 660; Hook v. Turner, 22 Mo. 333-335. It is as fully raised by a general denial “as any other answer could raise it.” Wisnell v. Tefft, 5 Kan. 263" court="Kan." date_filed="1870-01-15" href="https://app.midpage.ai/document/wiswell-v-tefft-7882209?utm_source=webapp" opinion_id="7882209">5 Kan. 263; Bliss on Pl., 353; Allen v. Richard, arde, p. 55.
This construction of the pleading in this case is in no wise in conflict with the cases of Gardner v. Armstong, 31 Mo. 535" court="Mo." date_filed="1862-03-15" href="https://app.midpage.ai/document/gardner-v-armstrong-8001068?utm_source=webapp" opinion_id="8001068">31 Mo. 535; Rabsuhl v. Lack, 35 Mo. 316" court="Mo." date_filed="1864-10-15" href="https://app.midpage.ai/document/rabsuhl-v-lack-8001601?utm_source=webapp" opinion_id="8001601">35 Mo. 316; and Graff v. Foster, 67 Mo. 512" court="Mo." date_filed="1878-04-15" href="https://app.midpage.ai/document/graff-v-foster-8005957?utm_source=webapp" opinion_id="8005957">67 Mo. 512, cited by the court of apjteals in support of its ruling. In the first case cited the court simply holds, that the petition was not demurrable for failing to recite that the contract was in writing. That was matter of defence to be raised by the answer. It does not say that the question would not be well raised, under our present practice act, by the general issue. So in the case in 35 Mo., the answer admitted the indebtedness without pleading the statute. And in Graff v. Foster, an examination will show that the answer did not deny the contract, but merely put in issue the indebtedness. To deny the indebtedness is no denial of the existence of the contract out of which the petition avers the indebtedness arose. Engler v. Bate, 19 Mo. 543" court="Mo." date_filed="1854-03-15" href="https://app.midpage.ai/document/engler-v-bate-7999339?utm_source=webapp" opinion_id="7999339">19 Mo. 543.
II. The question next recurs, was the contract in
Lot Name of Purchaser. Price Cash per. acre. Paid.
12. Thomas W. Nichols, . $41.00 -
7. Frederick Wm. Kroner, . 32.50 $20.00
8. Herman Henry Engleki, 39.50 20.00
11. Lewis Vesper, . . . . 44.25 20.00
2 & 6. August Kleinsorge, . 30.00 20.00”
The evidence showed that this sale was extensively advertised, fully describing the property, and that the clerk of the auctioneer, under the eye and sanction of the auctioneer, made this memorandum at the time of the sale, inserting the purchasers’ names and affixing the name of the auctioneer. Wherein, then, consists the infirmity of this memorandum ? The defendant has pointed out in argument no specific objection; but contents himself by assuming that it is bad. The memorandum contains the names of the vendors and the purchaser, the terms of the sale, the amount bid and paid. While the description of the land is not as full as it might have been, the surrounding facts and circumstances were such as to enable the purchaser to identify and locate the lots. Cozzens, a witness, testified that he surveyed the land and subdivided it into lots, made a plat thereof and filed the same in the proper office, giving the number of acres in each. The parties were near the land at the sale, and its location was well understood at the time. This enabled the parties to ascertain and identify lots 2 and 6 stricken off to defendant. This is all the law requires in the matter of description, ' Browne Stat. of Fr., § -385; Long v.
The insertion by the auctioneer of the defendant’s name as the purchaser, if done at the time in his presence, was a sufficient signing or execution or the contract to make it obligatory upon him as the party to be charged thereby. Browne Stat. of Fr., § 351; McComb v. Wright, 4 John. Ch. 659; Gill v. Bicknell, 2 Cush. 358; Gill v. Hewitt, 7 Bush (Ky.) 10; Tatem v. Holliday, 59 Mo. 422" court="Mo." date_filed="1875-03-15" href="https://app.midpage.ai/document/tatum-v-holliday-8004938?utm_source=webapp" opinion_id="8004938">59 Mo. 422; Barclay v. Bates, 2 Mo. App. 139" court="Mo. Ct. App." date_filed="1876-04-25" href="https://app.midpage.ai/document/barclay-v-bates-6613482?utm_source=webapp" opinion_id="6613482">2 Mo. App. 139.
III. The remaining defence interposed to the action is, that the sale is voidable because of secret or by-bidding, at the instance of plaintiffs, under the circumstances of fraud, as against the defendant. The circuit judge who heard the case, was satisfied there was such by-bidding, within the prohibition of the law, and so declared in his opinion filed in the case. The court of appeals, on a review of the evidence, were of a different opinion, and maintained the integrity of the sale.
So great a jurist as Shaw, C. J., in Gill v. Bicknell, supra, expressed a strong inclination to the opinion that an action of this character is on the law rather than the equity side of the court. He said: “The plaintiff’s only ground of complaint is, that the defendant did not pay the money, and there seems no good reason why an action at law for the money would not afford the plaintiff all the remedy he can ask. ’ ’ And we have held in Carter v. Prior, 78 Mo. 222" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/carter-v-prior-8007422?utm_source=webapp" opinion_id="8007422">78 Mo. 222, that an equitable defence to a common law action will not have the effect of changing such action Into a suit in equity. If this view should be applied to this case the finding of the circuit court on the question of fact would not be reviewable here. But waiving this, and treating the case as one in equity, after a careful review of the evidence we regret our inability to reach the same conclusion as the court of appeals. Whilst «it is true, as asserted by the learned judge who spoke for that court, that on appeal, in an equity ca.se, it is the province and duty of the appellate court to look into the evidence,
If full credence should be given to the general asseverations of Springer and Nichols, the conclusion would seem just that there was no conspiracy or combination between them to impose on any bidder. But this case, in my opinion, illustrates a fact often falling under the observation of the practitioner and the judge, that where fraud does exist it seems to be irrepressible, and discovers [itself in such unmistakable form and mien as to outweigh ithe loudest protestations of innocence by its perpetrators. Massey v. Young, 73 Mo. 273. The evidence shows that Nichols held a deed of trust on 320 acres of land, embracrng the two lots, 2 and 6, in controversy, to secure to him the payment of $4000 owing by Springer and others. Instead of pursuing the ordinary method of collecting his claim by foreclosure of the mortgage, it seems fairly inferable, that by arrangement between creditor and debtor resort was had to a sale by public auction. The sale was liberally advertised. The land was laid off into six lots.. Nichols attended the sale and bid on the property, as was
Again, both the auctioneer and the clerk of the sale testified that the memorandum of sale, with the names of the purchasers, the price bid, and amount paid down, was made out at the time and place of the sale. Yet the uncontradicted testimony of Kroner and Engleki is, that they bought or took the land from Nichols after the auction sale, and one of them after they had left the ground. And most remarkable, the memorandum of sale made by the auctioneer, through the clerk, shows Kroner and Engleki to be the purchasers and bidders for the lots bid in by Nichols. There was, therefore, some “post-mortem” doctoring of the record. And again, the uncontradicted evidence is, that Nichols bid $30 per acre for the third
Did Nichols lose the difference between his actual bid and the sum for which he sold to Engleki ? The record is ominously silent. His whole conduct contradicts his pretentions that in bidding he was actuated solely by a desire to-protect his own interest. That he was acting in concert with and for the benefit of Springer, and to puff the land to influence bidders, is painfully apparent. That he bid in the first lot, which yet stands in his name, for the use of Springer, is difficult to disbelieve. The deed of trust between them has never been satisfied. They concede there is $1000 yet owing thereon to Nichols, although Nichols was attending this sale to secure his money. Years afterwards, although the sums realized from the sales and notes taken thereat should long since have been paid off the mortgage debt, his debt, is unsatisfied. No deed appears to have ever been made by Springer to Nichols for the lot bid in by him. That they had a secret understanding between them touching this whole matter is too palpable for any mere generality of expression to conceal.
The sales of all the lots in this instance were a continuous transaction, so united in purpose, and so linked together in time, that they were quite inseparable. The one illustrates and manifests the general fraudulent purpose, and the proof of the one goes to establish the other. Erfort v. Consolus, 47 Mo. 268" court="Mo." date_filed="1871-01-15" href="https://app.midpage.ai/document/adamson-v-davis-8003090?utm_source=webapp" opinion_id="8003090">47 Mo. 268. After the fowlers had spread their net, by the previous by-bidding, they might well stand aside to see their game walk into the snare. We quite agree, too, with the finding of the circuit judge, that the actual value of the lots put on to the defendant was greatly below the price bid by him. The character of the defendant’s witnesses, touching the value of this property, is more reliable, because they spoke more directly from their actual knowledge of the condition of the timber and land. The very effort made in this suit to compel the defendant to stick to his bargain indicates that the plaintiffs regard the land as well sold. The evidence further shows that, as a means of inducing compe
The conclusion reached by us in no wise conflicts with the doctrine maintained by courts of high authority, that by-bidding may be sanctioned in auction sales, “if it be bona fide, and for the sole purpose of preventing a sacrifice of the property.” In such a case the course of fairness and common honesty should impel the vendor to so announce at the sale. It must follow that, in our judgment, the action of the circuit court was right, and the judgment of the court of appeals should be reversed, and the cause remanded, with directions to the court of appeals to enter a judgment affirming the judgment of the circuit court.