Darst v. Thomas

Mr. Justice Dickey delivered the opinion of the Court: It is objected to this decree, that it gives compensation in money instead of simply enforcing the equity of appellee to have the sales set aside, and to have the property sold, selling lot 12 first, the west half of lot 3 next, and the east half last. Solicitors for appellants say these were the original equities ofappellee, and the court can not properly give him more. We see no objection to the decree in this regard. By the fraud of Darst and Horn the appellee has been placed in a condition where he can not so readily assert what are called his original equities. The possession of the east half of lot 3 is taken from him, and the price of lot 12 is paid over to the non-resident mortgagee. Although it may be that appellee might have followed the course suggested, he is not confined to that remedy. The sham bid of McKee wa.s procured by Darst and Horn. On the faith of it, lot 3 was sold at $3900, and gave appellee an equitable right to $1750 out of the surplus of that bid over the amount apparently left unpaid of the mortgage debt, after deducting the price of lot 12. Others having acted on the faith of that sham bid, Darst and Horn were bound, as its authors, to make it good. This they failed to do. By that failure, and by their connivance, appellee was deprived of that sum of money, and Darst and Horn, as the owners of lot 12, got the full benefit of that much money, which ought to have been paid to appellee. It is but right that they should refund it, with interest. The loss was the fruit of their fraud—they mtist respond. Horn having died, it is right and proper that his property in the hands of his heir and devisee should be subjected to the same burden which the decree would have imposed upon Horn, if living. The cause of complaint rests upon the fraud of Darst and Horn, and appellee had his election to proceed at law or in equity. He was not confined to his remedy at law, as suggested by counsel. It is complained that $1750 is more than the value of appellee’s interest in the land. From the findings it seems no more than just. We can not consider the objection that the findings of the court are not supported by the proofs, for the evidence is not preserved in the record. We must assume that' the findings are true. We find no sufficient cause to disturb the decree of the circuit court. Decree affirmed.