Massey v. Young

1: Fraud: action to set aside sheriff’s deed: evidence. In an action by a defendant in execution against the plaintiff, the plaintiff’s attorney and the purchaser at a sale thereunder to set aside the sale and sheriff’s deed, on the ground, among other things, of fraud and conspiracy between the defendants in the action. Held, that it was error to exclude the execution, the return thereon and the deed. 2. Sheriff’s Sale : transfer, of bid. A bidder at execution sale may transfer his purchase to another by consent of the latter, and the transferee will then become the recipient of the deed from the sheriff. 3. -: PURCHASE BY SHERIFF’S CLERK, VIEWED WITH SUSPICION. Although a sheriff’s clerk not holding an appointment as deputy, is not forbidden by statute to buy at a sale by the sheriff, yet equity will narrowly watch the actions of a person possessing such opportunities for questionable practices, and if he does buy, will view the transaction as against the policy of the law and pregnant with suspicion of fraud, and if there be indications of unfairness or inadequacy of price or the like, will hold that the purchase is not bona fide. . ■ 4. Proof of Fraud. Fraud is rarely ever susceptible of positive proof. Its vermiculations are chiefly traceable by covered tracks and studious concealments. It is not to be presumed; but anything which satisfl.es the mind and conscience of its existence is sufficient. 5. Fraud in Execution Sale Avoids it as to all Parties. In an action brought by a defendant in execution against the plaintiff, his attorney and the purchaser at the execution sale, to set aside the sale on the ground of fraud, it appeared that the fraud had been perpetrated by the attorney, the purchaser and a third person, and that the defendant and the plaintiff were alike victims of the fraud. Held, that the sale must be set aside in Mo. The purchaser could not be decreed to hold as trustee for the plaintiff.

Appeal from Franklin Circuit Court. — Hon. A. J. Seay, Judge. This was a suit brought by Jane Massey against Isaac N. Young, Thaddeus A. Lowe and Wm. Kelso. The petition set forth that plaintiff was the owner of an undivided one-third interest in sevei'al tracts of land in Eranklin county, fully describing them; that in November, 1872, defendant Young recovered a judgment against plaintiff for $226.82 and costs, on which he caused an execution to be issued, and on the 1st day of November, 1873, had said 'lands sold under said execution ; that there was no competition at said sale, and the property was struck off to defendant Kelso for $47 ; that her interest was fairly worth $1,000 ; that the several tracts were valuable for different purposes, some for agriculture and others for their mineral deposits, but this fact was concealed by defendants from the sheriff, and all the tracts were offered and sold in one body; that at the time of the sale and for a long time before and after it plaintiff was in a state of mental and physical infirmity, which wholly incapacitated her from business; that defendants were fully aware of these facts, and conspired and confederated together to cheat and defraud plaintiff' out of her property, and to that end caused the sale to be made in a body, and thereby prevented competition, and secured the property at a nominal sum. The petition prayed that the sale be set.aside and for general relief. To this petition defendant Young filed an answer admitting all its allegations except the charge of fraud and conspiracy. For further answer in the nature of a cross-bill against his ,co-defendants, he alleged in substance that the said judgment had been obtained by defendant Lowe as his attorney; that he did not himself at the time reside in Eranklin .county, and Lowe managed the whole matter for him ; that Lowe caused the sale to be made and promised to bid upon the property so as to make it bring the debt ; that he had neglected to do so ; that plaintiff Massey was insolvent and defendant had thus lost his debt entirely; that Lowe’s conduct was prompted by the fraudulent purpose of cheating defendant out of his claim against the plaintiff, and that he had combined and confederated with defendant Kelso and induced him to take the sheriff’s deed in his name for that purpose, and that Kelso was fraudulently holding the property for the joint benefit of himself and Lowe. .The cross-bill prayed that Kelso be declared a trustee for Young, and that the title so acquired by him be divested out of him and vested in Young. Defendants Lowe and Kelso filed a joint answer to the petition'denying specially all the allegations thereof. Defendant Lowe also filed an answer to the cross-bill of defendant Young, denying specially all the allegations of the cross-bill, and averring that he had not bid in the property because Young had failed to furnish him with the money to pay the costs, and the purchase could not have been consummated without payment of the costs. Defendant Kelso likewise filed an answer to the cross-bill, denying all fraud, and averring that he did not know that Lowe was Young’s attorney until "after the sale, and that the purchase was made for his own sole benefit. To these several answers plaintiff' filed a reply denying the new matter set up in them. Defendant Young likewise replied denying the allegations of new matter in the answers of Lowe and Kelso to his cross-bill. At the trial the plaintiff offered in evidence the execution in the case of Young against Massey, under which ■was made the sale complained of, together with the sheriff’s return thereon ; also the sheriff’s deed. This evidence was offered for the purpose of showing that the land was sold in a body. Defendants Lowe and Kelso objected to the admission of the deed on the ground that it did not show whether the land was sold in a body or in separate tracts, and to the admission of the execution and return on the ground that the latter was no evidence against a purchaser at the sale. These objections were sustained, and the evidence was excluded. Theron Barnum and John E. Darby testified to plaintiff’s mental infirmity. James Halligan, attorney for defendant Young, testified that a short time before this suit was brought he and Kelso were talking about Lowe and the sale of the Massey land and the charge Miss Massey was making of frauds between Young and LoweJ when Kelso remarked something like this: That he and Lowe were to divide whatever they made out of the purchase between them; that he had bid for the land honestly and paid his money for it, and, if he lost the land, he thought he would get his money back. In a subsequent conversation Kelso said that the agreement to divide with Lowe was made after the purchase. Some time after this he called witness’ attention to the fact that he had made this last remark. This last conversation took place after this suit was brought. Defendant Young testified: When I learned that Lowe had obtained a judgment for me against Jane Massey, I instructed him in case her interest in her father’s real estate was sold to bid it up to the amount of the judgment and costs, and if it should fail to bring so much,' to buy it in for me. Lowe disobeyed my instructions and permitted the land to be sold for about $40. I have never received one dollar of my claim. The land was sold in one body. It would have sold to much better advantage separately. The whole of the land was certainly worth at the time of the sale $4,000 or $5,000. Plaintiff’s father refused $5,000 for eighty acres of it. This eighty acres was rich in mineral. E. H. Jeffries testified that the Massey lands were in •two tracts about six miles apart; both were rough and broken and almost entirely unfit for cultivation. On one there was some lead. It was said to be fair scrap diggings, value rather prospective than known. Defendant Lowe testified : I never heard of any mental or physical infirmity of Jane Massey until after I obtained the judgment against her, when I heard Colonel Crews say she was crazy. When the judgment was obtained I notified Young of the fact; don’t know who ordered the execution issued; don’t think I did ; had no money in my hands to pay costs; he never gave me any and never authorized me to bid on the property for him ; don’t think I ever had a word with Kelso about the lands before the sale. One or two weeks after the sale I had a conversation with him; didn’t know he had bought the lands till he came to me after the sale and told me so. There was, before the sale, no agreement of any kind between Kelso and me in relation to the lands.. Sometime after the sale I agreed to bring a suit for him to partition the lands. I was to have half the proceeds from his share, after deducting his purchase money. I brought the' suit; never had any conversation with Kelso before the sale about Jane Massey. On cross-examination, witness said: 1 wrote a good many letters to Young to which I got no answer; tried to find his whereabouts by writing to postmasters in localities where I supposed he might be found or known; don’t think I informed Young that execution had issued ; didn’t know where he was; don’t remember that I ever made any promise to protect Young’s interest at the sale or buy in the land. I was not present at the sale; had no object in being either present or absent; don’t think I knew at the time the exact day on which the sale occurred. It was a matter that didn’t concern me; don’t think I had agreed to attend the sale; don’t know whether I had any communication with Young after the sale or not; had considerable trouble trying to find him; finally found him in Eranklin county; he had been there but a short time; he had been living in Douglass county, then in Polk. I knew but little of the pecuniary condition of Jane Massey at the time of the sale; knew of no means to pay the judgment but the land; I was about Union, the county seat, on the day of sale. My office fronted the court house square. I had no special reason not to be at the sale; had no arrangement with anybody to represent me at the sale as attorney for Young or otherwise. The witness then identified a letter written by himself to Young, February 14th, 1878, in which he wrote: “I will have an execution issued in your favor against Jane Massey and her interest in the land sold to satisfy it, though her attorneys have given me notice that she was insane at the time of the rendition of the judgment, and that if her interest is sold they will move to set aside the sale on that account; but I will have it sold and buy it in for you, and then you will have to resist their application to set aside.” The witness then identified another letter written by himself to Young, April 16th, 1874, in which he wrote: “ Yours of 13th came to hand. I was quite surprised to hear from you at Sullivan, so close to home, when I had been hunting for you so long. What I desired to communicate to you is this: I caúsed the interest of Jane Massey in Massey’s lands in this county to be sold under your judgment. I tried to communicate with you, so as to ascertain if'you desired me to buy them in for you, but not being able to hear from you, I had to let the matter go. So at the sale one Wm. Kelso bought her interest at $47, a little less than enough to pay the costs. Therefore Kelso owns Jane Massey’s share, and he wants to make partition of the land, or have it sold — and the question is whether yourself and the boys will join as plaintiffs in the partition suit against the Massey heirs, who I understand are in Europe; or I think that Mr. Kelso would sell his claim at reasonable rates, and thinking that you might desire to keep the lands in the family, and, to that end, might wish to buy him out, is the reason for writing to you.” Defendant Kelso testified : I believe I asked Lowe if the title to the land was good, about the time I bought, and I think I asked if the sale was regular and legal, and if the notice of sale was all right. Mr. Lowe was doing business for me as attorney at law about that time. I went to him because I thought he knew about the business; don’t think I knew at that time, that he had been attorney for Young; think I found it out a few days afterward; don’t remember how long it was after that before I had another conversation with Lowe; had no conversation with him before the sale; had such a conversation with Halligan as is detailed in his testimony, and had such a contract with Lowe. My impression is I made this contract after the sale. I offered Lowe one-half the proceeds of the sale of my share of the land, after deducting purchase money, or one-half the land I bought, if he would bring a partition suit and attend to the whole business until it was finally disposed of, and he accepted my offer. I took the land at another man’s bid. When he wanted me to take¡ it, I asked him if it was all right, and he said it was, and to ask Lowe about it. I asked Lowe, and he said it was all right. I asked about the title, regularity of the sale, notice, etc. The man of whom I took the bid is Stephen Erazee. I think it was the next day after the sale that he wanted me to take the bid off his hands. , On cross-examination, the witness said : I was not at the sale; don’t know the land. Erazee told me it was worth more than the money. I don’t remember whether I paid it to the sheriff or one of his deputies; if to a deputy, I don’t know which. I think, perhaps, Erazee was one; saw him. about the sheriff’s office. He was in the office when I talked to him about the land. I saw him handle executions; don’t know how long he had been there; don’t know that he was deputy; saw him attending to business for the sheriff; think Erazee stated some kind of a reason why he wanted me to take the bid off his hands. He said something about Gale, the circuit judge. I think he said that Gale would say he was deputy ; don’t remember that I paid the money to Erazee; don’t remember when I talked to the sheriff about the matter, if at all; think I spoke to Mr. Lowe about the partition suit before I got the deed; I talked with Lowe before I took the land. Erazee has no interest in it now, nor has he had any since I took his bid. I paid the money to him or to the sheriff; gave just the amount of his bid, no more. He told me there were two more interests, and that a partition suit would have to be brought. I have been a deputy sheriff myself some four or five years, and have been around the court house a good deal; think I saw Lowe before I paid the money. Stephen Erazee testified : I was at the sale; bid on the land; so did others. The land was sold in six subdivisions. I did not hold any official position in the office of the sheriff at the time of sale ; was in his office as clerk; signed his name to receipts on his verbal authorization; bid the highest, and all the lands were sold to me ; transferred my bid to Wm. Kelso. When I bought the land I thought I was getting the whole of it. Somehow I found out that Lowe was the attorney of Young, and he told me I had only bought an undivided one-third, and that there would have to be a partition suit to get the benefit of even that part. I had made no inquiry into the matter before the sale ; bought it because I thought something could be made out of it; did not want to get mixed up in the courts in a partition suit; so I offered to transfer my bid to Kelso in order to avoid the trouble, time and expense of a partition suit; think, perhaps, I met Kelso on day of sale, and knowing that Kelso was a man who sometimes bought land, I offered him my bid. He asked me if it was all right. I referred him to Lowe as a man who might know something about it; told him Lowe had been attorney fór Young in the suit. When I bid on the property and bought it, I bid and bought for myself exclusively. There was no understanding between myself, Lowe and Kelso as to my purchase. On cross-examination, the witness said: I don’t know that I ever investigated the title of the land; might have asked Mr. Wood about it. The handwriting of the return on the execution is mine, except the signature, which is Sheriff Crowe’s. I acted as clerk for Crowe in writing the return. This was part of my business. I staid in the office more than Crowe, hunted up titles to lands, entered levies on executions and did the general business of the office, but made no seizures of personal property, and did no business required to be done by an officer.' I. N. Inge testified: Jane Massey was rather a singular person; excluded herself from society; was sharp enough to count dollars and cents. I was her father’s administrator. I have seen a portion of the land in controversy. It is called mineral land; can’t say what was its value at time of sale. It is very rough, and timber is poor. John T. Crowe, the sheriff, testified : I hold in my hand the sale book containing advertisement, etc., of the Massey sale. The land was sold in six separate tracts. Erazee purchased all. I don’t remember whether there were any other bidders present or not. Erazee was clerk in my office, not deputy — worked by the day. He was justice of the peace and asked to have his office in mine. I remember something about the transfer, but don’t know whether the deed was made to Erazee or to Kelso; don’t remember who was present at the sale. Kelso may have been, and Lowe may have been present; cannot name any body that was present; made no other memorandum at the time of the sale. Don’t remember I charged the costs to Lowe. If I did, I think I would remember. Don’t think I charged costs to any body. Don’t remember whether Wood and O’Shea were present at the sale or not. My best recollection is the money was not paid on day of sale ; there was some arrangement about it. It was not a year till the money was paid. I don’t say that Kelso paid the money; don’t know who got the deed, don’t remember getting any instructions from him; if I did, they were verbal; don’t remember talking with Kelso; don’t remember any particular conversation with Frazee. At the close of the evidence, by leave of court, the plaintiff amended her petition by striking out the allegation that Kelso bid for the property, and substituting therefor an allegation that the bid was made by Frazee and was afterward by him transferred to Kelso, in consummation of a scheme arranged between Frazee, Lowe and Kelso, and in fraud of the rights of plaintiff. The court found for defendants Lowe and Kelso and entered a decree dismissing the petition of the plaintiff and the cross-bill of defendant Young. Erom this decree both the plaintiff and defendant Young appealed.