EVAN JENKINS v. DANIEL FRINK, G. W. MOODY, JAMES C. BRALEY, JACOB SHUMWAY, WESLEY GALLIMORE, and DANIEL L. MOODY, 30 Cal. 586

By the Court, Shafter, J.: This action was brought to compel the defendants Braley and Grallimore to convey to the plaintiff eighty-five acres of land, parcel of a tract of four hundred acres, situate in the County of Santa Clara. Braley and Grallimore demurred to the complaint on the ground that the facts stated did not constitute a cause of action, and on the further .ground that Frink and Moody were improperly joined as defendants. The demurrer was overruled and the defendants answered.

The case was tried by the Court on the issues of fact and the plaintiff had judgment for the relief demanded; and a decree was also entered against Braley and G-allimore adjudging and directing them to convey to their co-defendant Moody seventy acres of said four hundred acre tract, and one hundred and eighty acres thereof to defendant Frink, on grounds set up in their joint answer to the complaint. Braley and G-allimore moved for a new trial, but there being no statement in support of the motion, the motion was denied! The appeal is from the order and from each of the three judgments entered in the action.

The case presents but two questions: first, as to the correctness of the order overruling the demurrer; second, as to whether the judgments, are sustained, respectively, by the findings. First—The complaint charges that one Williams became the owner, in December, 1857, of four hundred acres of land in Santa Clara County, parcel of a Mexican grant known as “ Posolmi ” or Ynigo Rancho, and that in December, 1858, he mortgaged it to Esnault. That Williams thereafter put another mortgage on the same parcel, in favor of one Kealy.

That the mortgage to Esnault was foreclosed under proceedings to which Kealy, the subsequent encumbrancer, was a party defendant, the decree therein bearing date September 21st, I860. That the defendant Frink became the purchaser at the Sheriff’s sale for the sum of three thousand four hundred and fifty dollars, which said sum was sufficient to pay the Esnault judgment and costs, and" the sum of forty-two dollars and forty-five cents on the Kealy debt, leaving a portion of said debt unpaid.

That at the time of the sale' to Frink, he was in possession in severalty of one hundred and ninety-eight acres of said tract; Moody, of seventy acres; Braley, of thirty-five acres; Shumway, to all of whose rights the plaintiff has come by assignment, , of eighty-five acres, and Gallimore, of twelve acres.

That Frink purchased the four hundred acres “in trust for and for the use and benefit” of himself, the defendants Moody, Braley, Gallimore and Shumway, plaintiff’s assignor, “ to be held and owned by them in their respective portions aforesaid; and the purchase money of said premises paid by Frink was advanced to him by Moody, Braley, Gallimore and Shumway, in the respective proportions aforesaid, for the purpose of purchasing said premises at said sale for the benefit of himself and said parties in the proportions aforesaid.” That Frink agreed with said parties, and that they agreed with each other, to the effect that Frink should hold the lands in trust for himself and them, and that in the event a redemption from said sale should not be effected, said Frink would convey said premises to the other parties in the respective proportions aforesaid, retaining to himself the part whereof he was possessed in severalty.

The agreement was reduced to writing, June 13th, 1861, and a copy thereof is annexed to and made part of the complaint.

It is further alleged that after the plaintiff had succeeded to the rights of Shumway, the defendants Braley and Gallimore “ fraudulently confederated together for the purpose of depriving the plaintiff and the other parties to the agreement, except themselves, of the benefit thereof, and of the title to the respective portions of the said four hundred acre tract, * * * and with that view purchased from Kealy, for a nominal sum, the judgment and decree rendered in his favor in said Esnault suit, and caused the same to be assigned to them. * * * * Within six months from said sale to Frink, they effected a redemption of said premises from said sale, and thereby prevented Frink from receiving the Sheriff’s deed of conveyance of said four hundred acre tract, and thereby acquired the legal title to said tract themselves, and have received a Sheriff’s deed therefor; that Frink is therefore unable to convey the eighty-five acres claimed by the plaintiff, and that the defendants Braley and G-allimore, who have the power, have refused so to do on demand.” Agreement opposed to public policy.

It is insisted for the appellants that the agreement set up in the complaint is illegal and void, for the reason that it is opposed to public policy. We do not consider that the agreement is on its face obnoxious to the objection. It was held in Phippen v. Stickney, 3 Met. 388, that an agreement to the effect that one of the parties would permit the other to become the purchaser of property about to be offered for sale at public auction, and that the two should share the benefits of the purchase between them, was not fraudulent prima facie. That whether fraudulent or not would depend upon intention.

That w7here such arrangement is made for the purpose and with the view of preventing fair competition, and by reason of want of bidders to depress the price of the

article offered for sale below the fair market value, it will be illegal, and may be avoided as between the parties as a -fraud upon the rights of the vendor. But that, on the other hand, if the arrangement is entered into for no such fraudulent purpose, but for the mutual convenience of the parties, as with a view of enabling them to become purchasers, each being desirous of purchasing a part of the property offered for sale, and not an entire lot, or induced by any other reasonable and honest purpose, such agreement will be valid and binding.

While the complaint in the case at bar certainly does not state or confess that the agreement set out therein was made for the purpose of depressing the price of the land in question by preventing fair competition at the Sheriff’s sale, it does state affirmatively another and distinct purpose, and one, too, that in the case cited was held to be perfectly legitimate. It was held in Small v. Jones, 1 Watt & Serg. 128, that parties may purchase jointly at a Sheriff’s sale if all be open and fair. That a combination of interests for that purpose is not necessarily corrupt.

That it is the end to be accomplished, which makes such combinations lawful or otherwise; if it be to depress the price of property by artifice, the purchase will be void; if it be to raise the means of payment by contribution, “ or to divide the property for the accommodation of purchasers,” it will be valid. It was considered in Switzer v.

Skiles, 3 Gilman, 529, that “ where a sale of land is made at public auction, and all persons are at liberty to bid, an agreement among different claimants to different portions of the land with an individual to purchase the whole tract for their benefit, is not such an agreement as is calculated to prevent competition, and thereby to render the sale void.” In Smith v.

Greenlee, 2 Dev. 129, the Court, while it sustains the general doctrine that a sale may be avoided when made to one in behalf of an association of bidders, designed to stifle competition, yet concedes that ' this rule would not apply to an association of bidders formed for honest and proper purposes, as in the case of a union of several persons formed on account of the magnitude of the sale, or “where the quantity offered to a single bidder exceeded the amount which individuals might wish to purchase on their own account.” We consider these cases, though not entirely in harmony with some other decisions, as furnishing the true exposition of the rule of the common law.

There is no principle of right reason upon which it can be held that the agreement now in question was calculated to keep bidders away from the auction, or to prevent free and intelligent competition among those who attended it; while it is apparent, on the other hand, that one bidder at least attended the sale in consequence of the agreement, and who, for aught we can know to the contrary, would have staid away if the agreement had not been made.

Second—The bill goes upon the theory that Braley and G-allimore hold the eighty-five acre tract in trust for the plaintiff as assignee of Shumway, and it is claimed for the appellants that the facts stated do not bear out the theory. Implied trust. The trust relied upon does not stand upon intention, but is one of the implied trusts which, under certain circumstances, are forced upon the conscience of parties by operation of law, and upon which the Statute of Frauds does not operate.

Under the agreement, Frink became the common agent of Shumway, Moody, Braley and Q-allimore to purchase the property and to take the title on failure of redemption; and to convey to each of the associates thereafter the parcel of which he was in possession. This was not only the agreement as between Frink and the others taken as a body, but each of the parties pledged his faith to the other that Frink should be allowed to execute the commission which they had unitedly conferred upon him.

It was on the faith of this arrangement alone that the purchase money was advanced by the parties respectively, and when the certificate of purchase was issued to Frink, he unquestionably held the inchoate right evidenced by it in trust for his associates, less the parcel of which he was himself in possession.

Of this right, so acquired and paid for out of a common fund, the five associates were tenants in common in equity; the fractional share of each being fixed in the contract, and a method pointed out therein by which the land, when the contingent right should have run into a title could be handily partitioned. (Schenck v. McEvoy, 24 Cal. 104.) Kealy was a judgment creditor, having a lien upon the land, and that fact was a standing reminder that the principal purpose of the associates might be defeated by a redemption on his part.

It was, therefore, neither fraudulent nor improper, in itself considered, .for Braley and Gallimore to buy up the Kealy judgment for the protection of the common plan, but the claim so acquired could not, on the principios of equitable dealing, be used by them to secure the whole .of that to themselves which they had agreed to share with others, and on the faith of which agreement their associates had already acted.

They were bound by the express contract to co-operate with the. other parties in securing the objects for whiph the union was formed, and it is settled that if parties are interested together by mutual agreement, and a purchase is made agreeably thereto, neither party can exclude the other from what was intended for the common benefit; and any private benefit touching the common right which is secured by either party will turn him into a trustee for the benefit of both or all. (Flagg v. Mann et al., 2 Sum. 490 ; Van Horne v. Fonda, 5 John. Ch. R. 406; Burhans et al. v. Van Zandt et als. 3 Seld. 523; Armour v.

Alexander, 10 Paige, 572; Rupp v. Orr, 31 Penn. 517 ; Switzer v. Skiles, 3 Gil. 529 ; Rothwell v. Dewees, 2 Black. 618 ; Venable v. Beauchamp, 3 Dana, 321.) Complaint to enforce implied trust. Third—The objection that the complaint does not state facts forming the basis of a trust in invitum is not well taken.

There is something more charged than that “ the defendants Braley and Gallimore fraudulently confederated together for the purpose of depriving the plaintiff and the other parties to the agreement, except themselves, of the benefit of said agreement.” The fiduciary relation established by the written agreement is fully developed in the complaint, and the conduct of the appellants, in violation of the duty springing from, that relation, is also set forth at large.

Fourth—It is urged that the complaint is defective, for the reason that it neither avers an offer to repay to the appellants ' the plaintiff’s share of the redemption money advanced by them, nor an offer to repay any part of the amount expended in purchasing the Kealy judgment. It does not appear from the complaint that any portion of the redemption money ever came to the hand of the plaintiff, and as to the money paid by the appellants for the Kealy judgment, it is averred that it was only nominal in amount. Parties defendant. Fifth—We consider that Frink and Moody were properly joined as defendants.

They might, consistently with the general relation existing between the parties, have disputed the averment that the plaintiff was entitled to that part of the four hundred acre tract described and claimed in the bill, and they were therefore not only proper but necessary parties to a complete determination or settlement of the questions involved. (Prac. Act, Sec. 13.) Findings of fact.

Sixth—It is further objected that the judgment in favor of the plaintiff should be reversed, for the reason that it is found that he received from the Sheriff his proportion of the redemption money paid by appellants, and that it is not found that the plaintiff offered to return the money before action brought. The answer is, that the judgment cannot be reversed on that ground, inasmuch as the findings were not excepted to as defective. (Acts 1861, pi 589, Sec.'2.) It must be presumed, , as the record stands, that an offer to return the redemption money was proved at the trial.

What can he revieived on appeal from order denying nezv trial. Seventh—It is insisted that the judgment in favor of Frink, and that also in favor of Moody, should be reversed, on the ground that a case was not presented in which one defendant can have judgment against another. It is not necessary to pass upon this question on its merits, inasmuch as the appeal from neither of these judgments was taken within a year from its rendition.

The appeal from the order denying a new trial was taken in time, but counsel is mistaken in supposing that a judgment can be reviewed, under an appeal of that impression, on the ground of a defective complaint, or on the ground that the judgment is not warranted by the findings. A new trial is “ a re-examination of an issue of fact in the same Court, after a trial and decision by a jury, Court or referees,” and is never granted except on a statement or affidavits, and neither are found in this record. Judgment affirmed. Mr. Justice Rhodes, being disqualified, did not participate in the decision of this cause.