Montgomery v. Miller
| Decision Date | 11 December 1895 |
| Citation | 33 S.W. 165,131 Mo. 595 |
| Parties | Montgomery et al., Appellants, v. Miller |
| Court | Missouri Supreme Court |
Appeal from Wright Circuit Court. -- Hon. Argus Cox, Judge.
Reversed and remanded.
J. P Nixon, John S. Haymes and F. M. Mansfield for appellants.
(1) The question whether defendant is an innocent purchaser was not made an issue by the pleadings. Wallace v. Wilson, 30 Mo. 335; Holdsworth v. Shannon, 113 Mo. 508. (2) A trustee acts for all interested parties, must be without partiality (26 Am. and Eng. Encyclopedia of Law, p. 877, sec 7), must act in perfect good faith, and sales made by him will be closely scrutinized. 2 Perry on Trusts [2 Ed.], p 175, sec. 602 x; Graham v. King, 50 Mo. 22; Stoffel v. Shroeder, 62 Mo. 147; Vail v. Jacobs, 62 Mo. 130; Sherwood v. Saxton, 63 Mo. 78. (3) The sale was made at an unusual hour (11 o'clock) and that at the request of the son-in-law of the beneficiary and with his consent. This is fatal. Stoffel v. Shroeder, 62 Mo. 147; Holdsworth v. Shannon, 113 Mo. 508. (4) If not, of itself, the grossly inadequate sum for which the land was sold, coupled with the other unfavorable circumstances surrounding the sale, demands that the sale should be set aside. 2 Perry on Trusts, p. 177, sec. 602 z; Magnusson v. Williams, 111 Ill. 450; Larned v. Geer, 139 Mass. 31; Vail v. Jacob, 62 Mo. 130; Holdsworth v. Shannon, supra. (5) The sale in mass, with the other circumstances of wrong or injury, is fatal. Benkerdorf v. Vincintz, 52 Mo. 441; Chesley v. Chesley, 54 Mo. 347; Bank v. Stumph, 73 Mo. 311; Chase v. Williams, 74 Mo. 429. (6) The debt, interest, and legitimate charges for which land was sold could hardly have reached $ 80. Yet the trustee, without dividing the land, which was easily susceptible of division, sold enough to realize more than one third more than was necessary. The trustee says one forty was worth $ 200, and he thought this forty "would sell the rest." Why did he desire to sell the rest? In the proper discharge of his duties, the trustee was required to sell the land in parcels, and only a sufficient quantity to satisfy the debt. Tatum v. Holliday, 59 Mo. 422; Baker v. Halligan, 75 Mo. 435.
Kice & Burkhead for respondent.
(1) Fraud is never presumed, but must be proved. Hardwicke v. Hamilton, 121 Mo. 465. (2) It should be proved by tangible and substantial facts. Thrasher v. Greene Co., 105 Mo. 244. (3) The evidence shows that Burkhead was not the agent of plaintiffs as to the land in controversy, and was agent for Montgomery & Powell only for the sale and rental of the "Noll," "Holman," "Grass," and "Fannan" places. (4) The sale was not at an unusual hour, as the evidence shows. (5) The sale was conducted fairly and honestly and land sold for a price not greatly inadequate. There is no collusion or fraud proved between Kice, the trustee, and the defendant. (6) Malonee was the old county collector of Douglas county, and it is fair to presume that he knew something about the real worth of the land. (7) Mere inadequacy of price, unattended by fraud or unfair dealing to the detriment of those interested, is not a distinct ground for setting aside a sale. Phillips v. Stewart, 59 Mo. 491; Hardwicke v. Hamilton, 121 Mo. 465.
On the first of August, 1891, F. M. Worrell, who was then the owner of the west half of the northeast quarter and the east half of the northwest quarter of section 12, township 55, range 16, in Douglas county, executed a deed of trust conveying said real estate to A. C. Kice, trustee, to secure the payment of his note of the same date, payable one year after date, for the sum of $ 60 with interest to one E. D. Pennington. Afterward, on the first of February, 1892, the said Worrell by deed of that date, and recorded on the same day subject to said deed of trust, conveyed said real estate to plaintiff E. F. Montgomery and one Vaughan, who afterward, on the ninth of February, 1892, executed a deed of trust of that date and recorded the same day conveying said real estate, together with other lands, to one Klineline as trustee, to secure certain promissory notes payable to plaintiff, Thomas M. Brown, which notes were afterward transferred by said Brown to the plaintiff, the Dallas county bank. Afterward, on third of September, 1892, the said Kice, trustee as aforesaid, in pursuance of the power granted in said first deed of trust, sold said real estate at public auction, at Ava, the county seat of said county, and the defendant, John F. Miller, became the purchaser thereof for the sum of $ 125, paid the purchase money, and immediately received the trustee's deed therefor, which was on the same day filed for record at 11:30 A. M.
Afterward the said plaintiffs instituted this suit to set aside said sale, to cancel said trustee's deed, and to be permitted to redeem, the petition charging, in substance, that plaintiffs reside in Dallas county, about sixty miles distant from Ava, the county seat of Douglas county; that they had employed one Asberry Burkhead, an attorney at law at Ava, to look after and protect their interests...
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