Simrall's Heirs v. Jacob's Ex'ors , 53 Ky. 502 ( 1854 )

Chief Justice Hise

delivered the opinion of the court.

In May, 1818, the heirs of William F. Simrall instituted their suit in chancery in the Jefferson circuit court, against James Hunter and others, to procure a conveyance of the legal title to about twenty and a half acres of land situated in the vicinity of Louis- ■ ville. In the progress of this suit it was ascertained that a balance of the price, which the ancestor of the complainants owed to Hunter for the land, remained unpaid ; and in January, 1823, a decree was made directing Hunter to convey the land by a given day to the complainants, upon their paying the residue of the price still due, to-wit: the sum of $265 69, with interest from the 1st May, 1814. If the complainants failed to make the payment on the day named, Samuel Dickerson was appointed as the court’s commissioner, with authority and direction to sell so much of the land as might be necessary to pay the sum due to Hunter. Hunter appealed to this court, and the decree of the circuit court was affirmed. Upon return of the cause to the circuit court, the complainants having failed to pay the sum due upon another day given, under an order of the court made 25th October, 1824, Dickerson, the commissioner, on the 10th February, 1825, made sale of the whole of the land for the sum of $457 40£, the debt, interest and costs due, to John I. Jacob, as the highest and best bidder.

The commissioner, on the 11th February,. 1825, made a minute and special report of his course and conduct in advertising the time and place of sale, and the mode pursued in making it, and on the same day the circuit court makes an order approving the report of the commissioner, and confirming the sale to J. I. Jacob, and also giving day to Hunter, and the heirs of Simrall, and others, to make a coveyance of the twenty and a half acres of land to the purchaser, Jacob, and on their failure to do so, authorizing Dickerson, the commissioner, to convey to Jacob, and report, &c. The parties directed so to do, having failed to convey the land to Jacob by the day given, the commissioner executed, reported, and acknowledged in open court a deed from Hunter, Breckinridge, Miller, Cochran and the heirs of Simrall, to J. I. Jacob for the twenty and a half acres of land, and the same was in April, 1825, approved, confirmed, and ordered to be recorded by the court, which was done. This land went into the possession of Jacob, after his purchase in February, 1825, and has so continued ever since. When, after the lapse of about twenty-seven years, the heirs of Simrall bring this suit in chancery against Jacob, on the 6th of March 1852, and upon certain charges of fraud and unfairness imputed to Jacob, the commissioner, and an agent of the wife of Simrall, demand that the commissioner’s sale and conveyance to Jacob shall be annulled, and that the land be restored to them upon their re-payment to Jacob of the sum paid by him for it to the commissioner, or which was realized from the sale, and applied to the payment of the balance of purchase money due to Hunter, with interest thereon, or upon just and equitable terms. Jacob answers, and either denies positively complainants allegations, or states that he does not recollect the facts to have taken place as charged, although, if they had occurred, he believes he would have remembered them, and therefore denies them, and demands proof of the charges as made.

The state of fact collected from the pleadings and proof, upon which complainants must succeed or fail in their demand, is precisely as follows, to-wit: Before the sale took place in 1825, E. T. Bainbridge, as the agent and friend of complainants’ mother and guardian, and apprehending a sacrifice of the land should it be sold by the commissioner at public sale, without some previous arrangement to secure a purchaser, after having applied to several other persons without success, appealed to J. I. Jacob to buy part of the land, or enough of it to pay the sum decreed to Hunter, at a fair price, Jacob agreed that he would pay $1,000 for the twenty and a half acres of land, provided, however, he could buy the whole of the land at the commissioner’s sale for the amount due upon the decree to Hunter, to which Bainbridge, after consulting with Mrs. Simrall, assented, believing it to be, as he states, the best arrangement that could be made under all the circumstances. The sale did not take place at the time, as at first advertised, and afterwards Jacob receded from the proposition to give $1,000, and proposed to Bainbridge to give $800 for the whole of the land, and declared he would give that and no more. Bainbridge, on account of the great scarcity of specie, the difficulty of procuring it, and being convinced that he could not do better, agreed to this abatement of the sum to be paid for the whole land, and to take the $800 for it. The other terms of agreement continued as before, unchanged. The sale was again advertised by the commissioner, and the land actually sold at the time and place designated by printed notice, and John I. Jacob became the purchaser at the precise amount due upon the decree in favor of Hunter. It will be observed, 'that it appears by the commissioner’s report that the sale was fair, open, and regular; that he endeavored by proclamation and inquiry at the sale to make the debt out of as small apart of the land as possible, but after inquiry and effort thus made no person was found who would pay the debt for less than the whole of the twenty and a half acres of land, and that Jacob, who made this offer to take the whole land and pay the debt, was the highest and best bidder at the sale.

Where land was decreed to be sold, or so much thereof as would satisfy a lien, and by an arrangementbetween defendant’s agent and a third person it was agreed that the third person would bid the amount of the lien for the whole lot of land, and paya specifiic sum to the defendant for the whole, and the commissioner made the sale without any knowledge of the agreement, or any fraud in the purchaser, and the land was bid oif by the person who had agreed to buy at the amount of the decree, and the sale was reported, confirmed, and the land conveyed, and the excess of price agreed on above the lien paid to defendant.— Held, that there wasnothingunfair or improper m the arrangement, and it was valid, and should not be disturbed after a lapse of twenty years and more.

The agreement between J. I. Jacob and Bainbridge amounts to this, and no more — Jacob agrees, upon the condition he can buy the whole of this land at the commissioner’s sale, for the debt, interest, and costs due to Hunter, so as to be able, in consequence thereof, to get the title to the whole of the land by the commissioner’s deed, he would pay over and above the amount of the decree a sum sufficient to make the whole price of the land come to $800, to this Bainbridge agrees. Now this agreement might or might not take effect; for, if at the sale any person should offer to pay the debt for less than the whole quantity of the land, to-wit, for three-fourths or one-half of the twenty and a half acres, in such event, of course, the agreement would have failed, and Jacob be released from his promise to pay the $800.

It does not appear from the evidence in the cause, that the commissioner was in any wise informed of or controlled by this arrangement, or that it produced the slightest effect upon his own action, or the sale itself. It is not shown that Jacob fraudulently prevented others from bidding at the sale, or that by any improper or fraudulent conduct or conversation of his, that he suppressed competition, or that by reason of his agreement the sale was controlled or influenced in any way. It follows that Jacob might, had he made no such agreement, have purchased the whole of the land for $457 40-J- instead of $800, so that he stands in the position of having gratuitously paid to Mrs. Simrall, the mother and guardian of the complainants, the sum of $342 60 more than he could have purchased the whole of the land for at the sale, as incontestibly proven by the results as ascertained by the actual sale itself, made by the commissioner, unless, indeed, it be made to appear that the commissioner was appi’ised of the agreement, and fraudulently brought about the result as reported by him, by hastily closing the sale upon the bid of Jacob, without affording an opportunity to others to make a bid more favorable for the interests of the heirs of Simrall, or by disregarding and rejecting such bid or bids, or that Jacob fraudulently prevented competition at the sale, by persuading others not to make any offers for the land on the ground that it was understood and arranged, by the parties interested, that he was to purchase it, or unless it appears that by some fault and fraud of Jacob, he prevented a fair sale of the land. But there is no proof, either circumstantial or positive, that tends in the slightest degree to falsify a single statement in the commissioner’s report of the sale made by him.

Bainbridge proves that he had attempted to make some arrangment with Dr; Wilson, and with others, to buy the land, to prevent a sacrifice, but Wilson declined, because “he did not have the money” and others declined “because the■ great scarcity of money was in the way.” He proves that others besides Jacob attended the sale, but that they were few in number; that he informed Wilson, at the place and on the day of sale, that he had made an arrangement with Jacob, and that Wilson left the place, but he does not say that either he or Jacob requested or induced Wilson or any other person to depart or refrain from bidding, or that it was any part of the agreement with Jacob that competition should be prevented or suppressed, and the just inference is, that Wilson failed to continue at the sale, or to bid, for the same reason which caused him to refuse to make any arrangement, as proposed to him by Bainbridge, to-wit, that it being a cash sale, he had no money or not enough to buy the land, and pay the debt to Hunter. Bainbridge says, that in making the arrangement with Jacob he thought he was serving Simrall’s heirs, and that certainly there was no intentional fraud on his part, nor did he believe, at that time, that any fraud was intended on the part of Jacob.

It is not shown that the commissioner was informed by Jacob of the agreement, that he had knowledge of it, or that he or the sale was at all influenced or controlled by it, and in fact, Bainbridge proves that he did not inform the commissioner of the agreement with Jacob, and he cannot say that the commissioner’s report is untrue in any particular, or that Jacob had any influence over his action in making the sale, or in making the report of the sale. Until Hunter’s debt was paid neither Bainbridge, Mrs. Simrail, or Simrall’s heirs had any right to sell the land, or to control the sale thereof. The sale made by Bainbridge, as Mrs. Simrall’s agent, if it be called a sale, being made entirely without right, title, or authority of any kind, was a mere nullity, and could pass no right to the land either legal or equitable. The court, through its commissioner, could alone make the sale and pass the title to the purchaser, of the twenty and a half acres of land. John I. Jacob took nothing, and could not possibly gain any thing, by his contract with Bainbridge, unless the court’s commissioner should, corruptly, in utter disregard of his duty, and in contempt of the court, whose decree he was required to execute in good faith, lend his aid and official authority to effectuate that arrangement. To presume that he did so, in the absence of any proof whatever of his knowledge of, or concurrence in that arrangement, would be unjust, unauthorized, and violative of that rule of law which requires and injoins a directly contrary presumption, to-wit, that the officers of a court have honestly discharged their duty, unless the contrary is made to appear by proof.

The fact that it so happened that Jacob did actually become the purchaser of the whole land for the debt due to Hunter, and costs, does not furnish such proof or authorize the presumption that the commissioner violated his duty, and that he was guilty of fraud; on the contrary, his report of his own regular, legal, and correct action, as reported by himself, must be taken as true, not only because the contrary is not shown by any evidence in the cause, but because it appears to be manifest from the testimony of Bainbridge that, on account of the great scarcity of a sound currency, and the consequent great depression of the price of real estate existing at the date of this sale, in February, 1825, had it not been for the arrangement made with Jacob, the whole of the land, would not have sold for more, but probably for less, than the debt, interest, and costs due to Hunter. The heirs of Simrall, therefore; were not injured, but, in all likelihood, benefittedby the arrangement with Jacob, as the excess over the amount for which the land was actually sold was paid over to their guardian and parent; and if no such arrangement had been made it is not certain that the whole land would have commanded, in February, 1825, at public sale, a sum sufficient even to pay the debt of Hunter; and it is perfectly certain Bainbridge made the agreement with Jacob to prevent such injurious result to the interests of the heirs, and that Jacob did not intend or design to prejudice their rights or interests, and in fact acquired no power to do so by the agreement with Bainbridge.

To sustain their claim the complainants attorneys rely upon the opinion of this court pronounced in the case of Wilson's heirs v. Wilson, reported in 9 B. Monroe, 275. In that case seven of the heirs of Mary Wilson alleged in their bill that their land had been sacrificed, at a decretal sale, for a small sum— less than one-tenth of its value — in consequence, as they charge, of a fraudulent combination and arrangement between the adult heirs of their mother, the complainant Fleming, the purchaser Hicks, and Newcomb the commissioner, they make the commissioner a defendant, and pray that if the land, (which it seems had been sold by Hicks to an innocent purchaser without notice of the fraud,) cannot be restored to them, that they may have a decree against New-comb the commissioner, with the other defendants, for the value of their interest in the land, &c.; they charged, as against Newcomb the commissioner, that through his co-operation with the other parties to the fraud, the sale itself was made subservient to effectuate their agreement, wherefore they insist that he, as well as the others, are responsible for the injury. The court say, in that opinion, that the commissioner’s sale was used to pass the title to Hicks, and that Fleming the creditor, and Newcomb the commissioner, are exempted from responsibility, not upon the ground that they were ignorant of the arrangement, or that they did not participate in it, but on the ground that they did not thereby derive any personal benefit or advantage, and the guilt of the commissioner was mitigated on the ground that he may have reasonably supposed that the excess for which the land was actually sold, over and above the amount falsely stated in his report, may have been applied to the payment of other debts against the estate of Mary Wilson, for payment of which the land could be thereafter subjected; and it seems manifest, from the whole tenor of that opinion, that the court assumed, as an established fact, that the commissioner knew of the agreement, and lent the aid of his office and his authority to carry it into effect. Whether the evidence contained in that record was sufficient to authorize such assumption or not, is not now the question; the court did assume, and believed, that the commissioner did, understandingly, co-operate with the other parties to the fraud to carry their scheme into execution, and excused him only because he may have believed that the excess paid by Hicks above the price reported as the sum for which the land sold, was necessary to pay other debts against the.estate for which the land was liable, and because he did not share personally in the plunder of the infants. So there is a wide distinction between this case and the case of Wilson v. Wilson, because, in the latter, the design to defraud the infants was manifest and the scheme had undoubtedly that effect, through the intentional co-operation of the commissioner; in this case there was no such fraudulent design, and the agreement with Jacob was not known to or regarded by the commissioner, and the sale was not at all effected or controlled by it so far as appears from the evidence contained in this record.

. The court had jurisdiction to order the sale; the sale was correctly and regularly made, under a decretal order, by a commissioner duly appointed for the purpose; the sale of the land, as reported, and the conveyance made to the purchaser, were both approved and confirmed by a final decree of the circuit court, which stands unreversed. After a lapse of twenty-seven years a title, thus derived, and clothed with such solemn sanction and high authority, ought not to be disturbed, and the owner divested of his right, unless upon grounds more solid, and upon evidence more lucid than any which appears in this record.

Since the court took a recess the term of office of Chief Justice Hise expired, and the Hon. Henry J. Stites was elected a Judge of the Court of Appeals from' the 1st District, and took his seat. Hon. Thos. A. Marshall is Chief Justice. — Rep.

Wherefore, the decree of the Louisville chancery court is affirmed.