Dart v. Bagley

• Decision Date: 09 May 1892
• Parties: Dart, Appellant, v. Bagley et al
• Court: Missouri Supreme Court

19 S.W. 311

110 Mo. 42

Dart, Appellant, v. Bagley et al

Supreme Court of Missouri

May 9, 1892

Appeal from Jackson Circuit Court.

Affirmed.

Brumback & Brumback for appellant.

(1) A notice of a trustee's sale is, and always has been, an advertisement. Bouvier's Law Dictionary, advertisement; 1 American & English Encyclopedia of Law, p. 306; Commonwealth v. Hooper, 5 Pick. 42; Webster's Dictionary; The Century Dictionary; R. S. 1889, secs. 7092 7093. (2) A notice of a trustee's sale, being an advertisement, was, at the time the land was sold under the deed of trust in question, an advertisement which the law of Missouri required should be made. R. S. 1889, secs. 7092 7093; Laws, 1885, p. 209; Lawrence v. Loan Co., 3 Kernan, 200; Baldridge v. Walton, 1 Mo. 520; Stine v. Wilkson, 10 Mo. 75; Siemers v Schrader, 14 Mo.App. 346. (3) A notice of a trustee's sale, being an advertisement which the law of Missouri required should be made, is an "advertisement required by law to be made" within the meaning of section 312 of Revised Statutes of 1889. R. S. 1889, secs. 312, 313, 314; Sutherland on Statutory Construction, sec. 267; Sutherland on Statutory Construction, sec. 239; Schultz v. Railroad, 36 Mo. 13; State v. King, 44 Mo. 283; State v. Dinling, 66 Mo. 375; Session Laws, 1879, p. 44; R. S. 1825, p. 125; R. S. 1835, p. 95; R. S. 1845, p. 111; R. S. 1855, p. 180; R. S. 1865, p. 692; R. S. 1879, sec. 320; Sessions Laws, 1883, p. 25; Original Laws, 1889, in secretary of state's office, heading advertisements; State v. Dolan, 93 Mo. 467; State v. Miller, 100 Mo. 439; St. Louis v. Alexander, 23 Mo. 483; State v. Hudson, 74 Mo. 410; Stine v. Wilkson, 10 Mo. 94. (4) Chapter 2 of Revised Statutes of 1889, and particularly sections 312, 313 and 314 thereof, mean that every advertisement required by law to be made must be made in the paper designated by the judges, unless the parties in interest agree upon some other paper. (5) There is nothing in the terms of the deed of trust in question, by which the parties agree that the trustee may advertise in any other than the paper designated by the judges. (6) A notice of trustee's sale, not being published in accordance with law, leaves the deed of trust in force, and gives the mortgagor the right to redeem. Pomeroy on Equity Jurisprudence, sec. 1219; American & English Encyclopedia of Law, mortgages, p. 827.

Ess, Block & Georgen, also, for appellant.

(1) Deeds are invalid if the advertisements are not made in the paper selected by the circuit court judges. Baldridge v. Walton, 1 Mo. 520-525, May term, 1825, of this court, under a deed of trust made in 1817, and sale made in 1823; Stine v. Wilkson, 10 Mo. 75, et seq., decision made at March term, 1846, of this court, on facts originating in 1839 and 1840. Thornburg v. Jones, 36 Mo. 514, et seq. Decision at October term, 1865, of this court, on matters originating in 1859 and 1861. Powers v. Kueckhoff, 41 Mo. 425, decided at October term, 1867, of this court; facts originating in deed of trust made in 1856, and sale in 1864. (2) So strong is the requirement of law to advertise a trustee's sale that, if this is not done, his deed is absolutely void, both at law and in equity. Thornburg v. Jones, 36 Mo. 514, et seq.; Powers v. Kueckhoff, 41 Mo. 425, 430, 431. (3) The statute law of this state has always assumed that an advertisement of trustee's sale is one required by law. R. S. 1845, sec. 1, p. 111; R. S. 1855, sec. 1, p. 180; R. S. 1865, sec. 6, ch. 174, p. 692, title 36; R. S. 1879, sec. 319, p. 47; R. S. 1889, p. 177. (4) A trustee's advertisement of sale is one required by law to be made, and to be proved by affidavit. That an affidavit is good proof of publication is admitted by this court, or assumed in Bank v. Stumpf, 73 Mo. 311, 314, 315. Such is the general understanding of the bar and the country. Unless the law requires the advertisement, the affidavit is not evidence. (5) The statute is evidently a remedial statute, and should be liberally construed to advance the remedy (making sales as public as possible and as cheap as possible), and suppress the mischief. A sale of land by a trustee is just as much within the mischief provided against by this statute as a sale by a sheriff, and is, therefore, within the remedy. Endlich on Interpretation of Statutes [Ed. 1888] sec. 27, p. 35; State ex rel. v. County Court, 41 Mo. 254, et seq.

O. H. Dean and Henry Wollman, for respondents.

The statute does not apply to trustees' sales or corporation notices for the following reasons: First. Because if this statute gives the circuit judge a right to make contracts which shall fix the price to be paid by a trustee for publishing a trustee's sale, which is not made under any order of court, or to be paid by corporations for publishing their notices made necessary in the transaction of their corporate business, and not connected with any court proceedings, it is unconstitutional, in that it confers jurisdiction on courts in matters that are not judicial, and is, therefore, in excess of the powers which, under the constitution of Missouri, courts are permitted to exercise. Second. The act itself is entitled "An act to provide for the publication of judicial notices," and, consequently, if it assumes to deal with anything more than the subject of the act, it would be unconstitutional in that far, and notices of trustees' sales and corporation notices are not judicial notices to which the title confines the operation of the act. Third. The act of itself does not require the publication to be made in such newspaper. While it provides that the circuit judges shall let a contract for the publication of notices, it does not require that the notice shall be published in such newspaper, and the most that can be said for it is that it is directory and not mandatory. Fourth. From the wording of it, and when construed in connection with other sections of the statutes, it cannot apply to trustees' sales and corporation notices.

Boyle & Adams and H. A. Clover, also, for respondents.

OPINION

In Banc.

Gantt J.

This was an action brought by the appellant to redeem certain real estate from a sale made under a power contained in a deed of trust.

The appellant, in September, 1891, made his deed of trust to the respondent, Bagley, as trustee, to secure a certain note therein described, payable to the order of respondent Bunker. The note was not paid at maturity. The power in the deed provided that Bagley might, upon such contingency, sell the land conveyed at public vendue, after first giving "twenty days' public notice of the time, terms and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in the City of Kansas, Missouri."

At the time the deed of trust and the sale thereunder were made, Revised Statutes, 1889, were in force, of which statutes, sections 312, 313 and 314, in relation to advertisements, are as follows: "Sec. 312. Advertisements to be let, when and how. -- In all cities having a population of more than one hundred thousand inhabitants, a board consisting of the judges of the circuit court of such cities, or of the judicial circuit in which such city is situated, or a majority of the same, shall, on or before the first day of January, 1890, and every two years thereafter, cause to be published in some daily newspaper of said city a notice of at least twenty days, designating when and where said board will receive sealed proposals from daily newspapers published in said city for the publication of all advertisements, judicial notices and orders of publication required by law to be made. At the time and place so designated, said board, or a majority thereof, shall proceed publicly to open said bids, and shall award the printing of all said publications to the newspaper naming the lowest and best bid. Provided, however, first, that said bid shall be accompanied by a good and sufficient bond, in the sum to be fixed by said board, conditioned for the correct and faithful publication in said newspaper of all said advertisements, notices and orders, in manner and form as required by law, and according to the schedule of rates named in said proposal, and upon said bond suit may be instituted in the name of the state, to the use of any person aggrieved; second, that no paper shall be awarded the contract for said publication, unless it have a bona fide daily circulation of at least three thousand copies; third, that in case said board shall believe that said bids are not sufficiently definite or specific, or that in consequence of combinations, or from any cause, said bids are unreasonably high, it shall be at liberty to reject all proposals, in which case it shall proceed at once to readvertise for proposals, as hereinbefore provided.

"Sec 313. Proceedings when contract expires. -- In case said award for said publication shall not be made until after the then existing contract for said printing shall have expired, the parties interested may, or in case of proceedings pending in court the clerks thereof shall, designate in what newspaper the publications required in the meantime to be made shall be printed; and provided, further, that in case of the suspension of the newspaper to which such contract shall have been awarded, or in case the said contract shall determine from any cause, the said board may proceed in the manner hereinbefore stated to make a new award of the publication of such notices, without waiting the expiration of two years.

"Sec 314. Advertisements, valid when. -- The publication of said advertisements, orders and notices, if made as aforesaid, in the newspaper so designated by said board or clerk, shall be valid and sufficient. But nothing in this chapter contained shall...